Transport Accident Commission v Katanas

[2017] HCATrans 102

[2017] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M160 of 2016

B e t w e e n -

TRANSPORT ACCIDENT COMMISSION

Appellant

and

Maria KATANAS

Respondent

KIEFEL CJ
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MAY 2017, AT 9.58 AM

Copyright in the High Court of Australia

MR S.A. O’MEARA, QC:   If the Court pleases, I appear with MR S.D. MARTIN for the appellant.  (instructed by Hall & Wilcox Lawyers)

MR M.F. WHEELAHAN, QC:   If the Court pleases, I appear with my learned friend, MR M.J. HOOPER, for the respondent.  (instructed by Zaparas Lawyers)

KIEFEL CJ:   Yes, Mr O’Meara.

MR O’MEARA:   Thank you, your Honour.  Your Honours, the appeal raises two issues.  The first is the subject of the ground of appeal and then there is an appeal and that is whether the majority of the Court of Appeal was correct to find that the primary judge misdirected himself at paragraph 82 of the reasons which appears in the appeal book at 382 to 383. 

The second issue is that raised by the notice of contention which is whether the reasons of the primary judge were legally inadequate.  That contention has been narrowed by the respondent yesterday.  In the respondent’s written submissions there were two propositions advanced under that general heading.  There is now only one and that is, it is said, that the primary judge failed adequately to explain the effect of the adverse credit finding and that finding was made at paragraphs 76 to 78 of the primary judge’s reasons which appear at 379 to 381 of the appeal book.

There are some features of this case that are not in dispute, at least between the present parties, and I will just deal with them immediately.  They are that the statute which, for present purposes, is section 93 of the Transport Accident Act required the primary judge to be satisfied that the respondent suffered from, in short, a severe long‑term mental or behavioural disturbance or disorder.  There are a few more words in there but that is the substance of it and I am not being unfair to it. 

The second thing is that the statute distinguishes in the definition of “serious injury” between “serious” in the case of physical injuries or bodily impairments and “severe” in the case of mental or behavioural disturbances or disorders.  Now, just dealing with “severe” for a moment, it is settled, as long ago as 1997 in Mobilio v Balliotis that “severe” is a stronger word than “serious”.  It is a stronger force.  Both the distinction and the imposition of this gateway to the recovery of common law damages has been in place in Victoria for upwards of 25 years.

Now, the proper approach to the valuation of “serious injury”, whether it be severe or serious, as the case may be, was settled in Humphries v Poljak in 1991.  There is a locus classicus that appears at page 140 of those reasons and, in fairness because our learned friends are going to go to it, that statement appears at paragraph 9 of the majority’s reasons in this case.  That is at appeal book 396. 

What is there framed is the task of the judge, with the onus of satisfaction resting upon the applicant to convince the judge that the injury is a serious one, meaning serious in its consequences to the applicant, and then with reference to the question, which appears in the last five lines of that paragraph or that passage, that is:

can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?

Now, for present purposes substitute the words “more than very considerable to the extent of being severe” – it is a word of stronger force.  But since 1997, in Mobilio, that has been accepted as the approach which should be adopted.  It forces the primary judge or, for that matter, any person coming to this - practitioner, the Transport Accident Commission itself, who comes to this question of the statutory fact, whether or not the person has a serious injury in the physical sense or a severe injury in the psychological sense, to approach it by examining the consequences for the person – and we will come to what that means in just a moment – assessed as a matter of perspective against the range of possible and relevant comparable cases.

The Court of Appeal said in later cases, including Dwyer which is referred to in the reasons of Justice Kaye at paragraph 71 – I will just refer to that in passing – that the range or “spectrum” as it has been referred to in Dwyer there referred to and some other cases cited in Justice Kaye’s reasons – deals with all relevant cases – those that do not get to litigation, either at the lower end or the upper end.  They go from the very simple twisted ankle that recovers with a bit of ice to the very – I hesitate to use this word – but “serious” broken ankle that leads to fusion and pain medication and multiple surgeries and a horror show.

As has been made clear in cases like Dwyer, those cases, of course, pretty rarely ever see – certainly the very light ones or the very heavy ones – very rarely see the inside of a courtroom.  The debate in the cases is about the application of the narrative test, as it is described.  Is it severe and long‑term or is it, in the case of a physical case, a serious impairment of a body function.  When it is a physical case the question is, is it at least very considerable?  When it is severe, of course – and I will not repeat myself – it is more serious than that. 

In Mobilio, the Court of Appeal determined this would not be revisited, that this formulation was a satisfactory one, as Justice Brooking there identified, that it had been useful to practitioners and the court for the six years that it had then been operating, and that it had reduced uncertainty in what was an uncertain area because, of course, otherwise there can be significant debate about what words like “serious” or “severe” might mean.

But in the way in which it operates – and I do not want to repeat myself – it is an assessment of the severity, if you like, of the presentation of a particular person, as they claim it, viewed within a range of what does and does not come before the court from least to most serious in comparable cases – not incomparable cases because you cannot compare apples and oranges and you cannot compare an ankle with a psychiatric disorder, you cannot compare an ankle often with a back.

In comparable cases, the question is where the person fits between the range and the range operates as a stabilising feature because very often the case is that the plaintiff in the case will say and often enough deposes, “My injury is very serious for me”, and that is what they will say in conference as well. 

Then again, the practitioner or, for that matter, the judge, especially in a County Court, hearing these cases all the time, will know that there are cases that are considerably less serious than this; on the other hand, there are many cases that are considerably more serious than this.  So the range stabilises where these cases are to be evaluated.  It stops it from just descending into a wilderness of subjective claims.

Now, in assessing those cases, Justice Kaye – and this will be uncontroversial ‑ at paragraphs 70 to 74 of the reasons of the Court of Appeal in the present case - dealt with these aspects of evaluation and the features that bear upon the assessment of severity or seriousness in a particular case, and these are in clear and uncontroversial terms.  At paragraph 70, which is at 416 of the appeal book, his Honour identified that it was:

important, for a judge, considering an application under s 93 . . . how the disorder, suffered by the applicant, fits within the range of such possible disorders -

and there at 71 refers to Dwyer, which I referred to a moment ago, which is about the spectrum of cases, not simply those which end up in litigation. Then at 72 he identified the test for mental disorders being severe, under subparagraph (c) of the “serious injury definition” which is section 93(17)(c) - is particularly stringent and so on. That is a reference back to Mobilio.

Then these two paragraphs at 73 and 74 are probably, with respect, we can say, the clearest statement of the correct approach in serious injury cases since Humphries v Poljak itself because it is here said, six lines from the bottom, that the:

severity of any disorder may only be determined by reference to its symptomatology, the treatment required for it, and its effect on and consequences for the particular person in question.  Each of those matters are inter‑related factors.

He develops the point further at paragraph 74 – and this is at 417 of the appeal book:

such an assessment would ordinarily involve an evaluation of the diagnosed disorder, its symptoms, and the nature and extent of the treatment undertaken, or required, in respect of the disorder, together with the effects of the disorder on the capacity of the applicant to undertake his or her usual occupational, recreational, social and domestic activities.

So that then speaks to the difference between, of course, the disorder and its symptoms and the treatment it requires on the one hand, and the effect of all of that upon the person’s life.  In this case, one of the plaintiff’s claims was “It has affected me, I can no longer study.  Before the accident, I could study.  Now I cannot because of my psychiatric disorder”.  There are other claims as well which are social and domestic in nature. 

Very often in the cases there are claims of occupational interference – “I can no longer work as a truck driver” or whatever.  That is not this case because in this case the plaintiff comes to the Court – 70 years of age, having been in a transport accident in 2010. 

But those passages show the important and interrelated features of this assessment in order to determine the statutory fact in each case.  Is the person who comes to court severe – in the sense of being of stronger force than serious – or in a physical case, serious and long‑term in both cases?  That is all that needs to be determined.  That is the way it is done, in our submission.

As I just said a moment ago, the respondent in this case was injured in a transport accident in July 2010.  I will not labour the facts but I will sketch them for assistance now and later on.  She suffered some physical injuries in the transport accident.  They were not the subject of her claim at trial in the County Court.  She claimed under subparagraph (c) of the “serious injury definition” which requires the severe long‑term mental and behavioural disturbance. 

She had not worked since the early 1990s.  So there were no occupational consequences relied upon.  Her claim was different.  It was persisting psychiatric injury and the features of her claim were identified by the learned primary judge in his reasons at paragraph 29 which appear at 368 of the appeal book.  He says there, in the bullets points:

She requires continuing treatment from Dr Chan –

the general practitioner:

Dr Alvarenga –

who was a psychologist:

Associate Professor Mazumdar –

who was a psychiatrist:

and Dr D’Abbs –

who, I think, was also a psychologist in the context of a pain management program and a little bit thereafter, I think there, too.  Then, the next bullet point is medication and then “intermittent nightmares”, “flashbacks”, “difficulty relaxing” and the studies referred to interruption to sleep, restriction in social pursuits and so on.  They are the kinds of things of which Humphries speaks and they were the basis for the claim which was brought – a combination of effect upon the life together with the nature of the claim - the nature of the injury and the treatment it required.

Aspects of those claims were assailed at some length in cross‑examination.  Your Honours will be pleased to know that I will not be going to the cross‑examination in inordinate length.  But the essence of that assault upon the claims of consequences is captured, in our submission, in the reasons of the primary judge from paragraphs 30 to 46 that there follow.

KIEFEL CJ:   Since there is no challenge to them, you probably do not need to go the cross‑examination.

MR O’MEARA:   No, that is right.  Paragraph 33 gives an insight into the nature of some of the evidence that was given because there, just dealing with the issue of socialising, the plaintiff had said in cross‑examination that she sees friends every now and again, but then she said she had no friends and she had lost many friends.  She was too depressed to call them and so on.  But then evidence came out in cross‑examination about continued society with friends walking and involvement in the lives of her grandchildren, Greek dancing and reading programs at schools and so on, much of which or a significant part of which had not been the subject of her affidavits.

Now, the primary judge was plainly unimpressed by that.  That is evident at paragraph 78 of his Honour’s reasons.  It starts at 76, which is at application book 379.  He there said that he had:

significant reservations about the plaintiff’s credibility.

He accepted the submission that she was “non‑responsive” in her answers and “prevaricated” in her evidence.  Then he particularised at 77 some of the features of this unsatisfactory evidence giving and then at 78 accepted that none of them meant that he could not accept that she had something to complain about, if you like, but it caused him:

to have reservations about the extent to which her psychological symptoms have impacted upon her life.  She did not answer questions in the manner I would expect of an honest witness.  She sought to argue and prevaricate regularly when matters were clearly put to her.

Now, for reasons which we have maybe touched on briefly but maybe touched on a moment ago, credit is very important in these cases because usually the establishment of the statutory fact or not depends upon emphasis because it is a question of degree - severe, not severe; serious, not serious. 

Much of this is in the emphasis in the way in which the plaintiff gives her evidence and sometimes in the affidavits as well but often enough when the plaintiff gets there and when it is hard to believe the plaintiff it is then hard to believe the emphasis as to the extent to which this injury affects those various features that we referred to.  How much restriction on the life really is there and how important is that restriction, which is significant in these cases because as Humphries v Poljak says the onus is upon the plaintiff and the plaintiff has to affirmatively satisfy the judge. 

So we come then to paragraph 82 of his Honour’s reasons which starts at appeal book 382 and that there states the issue in the first sentence.  All parties – it has never been contended that that is other than accurate and correct and, indeed, all members of the Court of Appeal accepted it to be accurate and correct and his Honour there referred in the next sentence to the meaning of the word “severe” and that is a reference back to Mobilio. 

Now, just stopping there for a moment and without going to it, but at paragraph 4 of his Honour’s reasons his Honour said the principles in this area are so well known that I do not have to go back to them and that is true because it had all been said as late as Mobilio but considerably before really because Humphries had never been seriously doubted.  Then, in the sentence that follows that commencing “In order to satisfy the test”:

the consequences arising from a transport accident must be more substantial than the test posed under ss(a) –

which is the physical test I referred to a moment ago:

that is, that they must be more than “very considerable” when a comparison is made with other cases in the possible range of impairments.

So his Honour is there doing two things.  He is referring to the consequences, not just the injury itself, and he is saying that they have to be more than very considerable, which is a reference, of course, back to Mobilio.  He is, in fact, doing three things, because he is saying you have to compare it with the range in the background, all of which is correct, all of which is consistent with applicable authority.  Nobody doubted here in the Court of Appeal or anywhere else.  Then he says:

Thus, consideration must be given to the vast array of mental disorders –

True - those that do not end up in litigation - for one reason because they are so light; others that do not because they are so heavy and the vast array in between.  At the sentence commencing “At one end of the spectrum”, which is about four lines down on 383, his Honour stated the ends of the spectrum. 

Now, this commences what has been referred to in the written submissions as the impugned passage.  One thing that has not been said about this passage is that it does not correctly state the ends of a spectrum of mental disorders of this type.  What his Honour does say is:

mild anxiety as a result of trauma, easily overcome without medical intervention.

True – very, very low.  On the other hand and:

At the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences, including psychoses, admission to psychiatric hospitals –

and so on, which:

require extensive treatment and medication. It follows that for a mental disorder to be described as being ‘severe’, it is at the
upper echelon –

That is the impugned passage.  But in the part of it that frames the range, the endpoints of each end of the range have never been criticised as wrong.  What is criticised as wrong and what is put against us as the error of the primary judge and what it is said the Court of Appeal found to be the error of the primary judge is the statement of that range focusing only upon the extent of treatment, not upon those other features that I referred to earlier:  the nature of the injury, its treatment, symptoms and its consequences.

Just stopping there for a moment, treatment – it has to be said that treatment was a significant part of this particular case because the respondent came before the Court and a significant part of what she claimed to be severe consequences, if you like, was her treatment.  They were the first two bullet points referred to by the primary judge at paragraph 29. 

KIEFEL CJ:   By way of supporting her ‑ ‑ ‑

MR O’MEARA:   Case.

KIEFEL CJ:   ‑ ‑ ‑ her claim to severity of effect.

MR O’MEARA:   In that passage that I took your Honours to a moment ago at paragraph 29, the primary judge recounted the features of her claims to severity, if you like.  The first two mentioned were the degree of her treatment and her medication.  So it cannot be said that referring to treatment was irrelevant – it is not irrelevant, it is very relevant.  What is put against us is that is all the judge referred to and all the judge was referring to and that is what it said the majority found. 

NETTLE J:   Did they not find it?

MR O’MEARA:   It is not quite clear but I think it is probably – the better view is that they probably did find that it was limited only to the extent of the treatment.  I say that by reference to paragraph – because I will come back to it, your Honour – paragraph 18 of the reasons of the majority later in the appeal book.  I will come to it in a moment. 

Assuming that that is right, that that is the finding made in the Court of Appeal against us, and that is certainly what is put against us by the respondent in the written submissions in this Court, in our submission it is just quite wrong.  It is quite wrong because this paragraph, paragraph 82, refers repeatedly to – starting in the second line of the paragraph – “symptoms and consequences” and then about five lines down, again “consequences” and then at the top of the next page – when referring to “comparison” and in stating the spectrum – refers to the other end of the spectrum being:

those disorders which provoke the most extreme symptoms and consequences, including . . . require extensive treatment and medication.

In our submission, the primary judge was not confining himself, certainly not expressly, to treatment; he was recognising all of those features of the evaluation required by the statutory test, and that is his very language.

GORDON J:   Is that what you said the majority does at paragraph 18?  Is that your complaint?

MR O’MEARA:   Yes, and in our submission a proper understanding of what the primary judge did at paragraph 82 is given or explained in the reasons of Justice Kaye, particularly from paragraphs 75 to 82, starting at page 418 of the appeal book.  What is there said – and the nub of it is at paragraph 75 – is:

that the judge postulated and applied a test that incorrectly referred solely to the symptoms and nature of the psychological disorder of the applicant, without reference to here consequences.  In my view, having regard to the totality of paragraph 82 of the judge’s reasons standing alone, but, more particularly . . . in the context . . . that follows –

which his Honour then addresses from paragraph 78:

the submission by the applicant does not correctly characterise the test postulated and applied by the judge.

He makes the point that we made just a moment ago, and that is in paragraph 76, that the paragraph itself uses the word “consequences” several times.  He explains then what the terms of the spectrum mean.  On the one hand, and this is about line 30 on the page:

the mildest extreme, is mild anxiety, which does not require any treatment and which, self‑evidently, would have no effective consequences –

So there is no point in talking about consequences when there are none and there are none usually in the very light cases.  Then it says:

The judge then stated ‘at the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences -

and then reference to inpatient admissions and other symptoms and so on:

each, of necessity could only have consequences for the person suffering the disorders that are severely disabling.

We say, in our submission, that is all absolutely correct.  Then, his Honour concludes, therefore, that the passage – that is 82 in what has been described as the impugned passage does not, when read in isolation, focus only on the nature of the disorder and its treatment, that the test articulated correctly took account of the relevant considerations. 

Now, from paragraphs 78 to 82 his Honour said this gains even greater force from context.  If you look at what follows, there is then considerable reference to the claimed consequences of the plaintiff in the particular case and as he says from 78 and following:

any ambiguity . . . is dispelled by a proper consideration of the next four concluding paragraphs –

and I do not need to go to them, they are there.  As we said earlier, we commended the Court the reasoning of Justice Kaye in this case, particularly in those paragraphs from 76 to 82 as both correct and probably the clearest statement of how these cases work.

EDELMAN J:   The existence of discussion about consequences is not necessarily inconsistent with the approach of a test which has focused only on treatment because one would consider treatment through the prism of what consequences need to be treated.

MR O’MEARA:   We might be getting into taxonomy here, your Honour.  It is usually symptoms which are treated.  Consequences are things like before the accident I could not play cricket, now ‑ ‑ ‑

EDELMAN J:   You disagree then with the majority’s approach that the line between symptoms and consequences is not a clearly defined line.

MR O’MEARA:   It sometimes not clearly defined.  It usually is pretty clearly defined but it does not really make any difference because as Justice Kaye said these factors are interrelated.  So, when you have got the nature of disorder, the treatment, the symptoms, the consequences – cricket – and you look at all of them together, as you do in these cases because it is a mix, then that is how you evaluate it. 

What is said against us is in paragraph 82 his Honour was not looking at it completely, and that is what the majority found if that is what the majority is saying, looked at it completely because they only looked at treatment.  Well, that is not on the face of the reasons, in our submission, it is just not – plainly wrong on the face of the reasons.  His Honour was addressing himself serially to treatment, symptoms, the nature of the disorder and everything.

GORDON J:   So, is your complaint about the reasons of the majority that they misunderstood the primary judge or is it, as I had understood your submission, a complaint about a new test?

MR O’MEARA:   It is that too because then real trouble starts at paragraph 19.  It is a combination of misunderstanding the primary judge together with – then introducing or casting into doubt – I am sorry, your Honour.

GORDON J:   No, no, I interrupted.

MR O’MEARA:   Casting into doubt what really are the remaining operative features of Humphries.

GORDON J:   I speak only for myself but I would be interested to know with precision how you say the Humphries test has been either departed from or muddied by the majority.

MR O’MEARA:   We come to that immediately, your Honour.  Our submission is that paragraph 19 ‑ ‑ ‑

GORDON J:   This is what appears at page 399, does it?

MR O’MEARA:   Yes, your Honour.

NETTLE J:   They obviously thought they were applying Humphries v Poljak because they said so at 9.

MR O’MEARA:   Your Honour, that is the point made against us and the point we make against that is that that might be right, except that everything
that surrounds the reference to Humphries v Poljak, both that paragraph extracted at 9 and the reference back to it in the latter part of paragraph 19 at appeal book 400, is not Humphries as we know it.

EDELMAN J:   Without intending to they restated Humphries.

NETTLE J:   Well, 9 is all right, I take it?

MR O’MEARA:   Quite.

NETTLE J:   And 11 is good?

MR O’MEARA:   We do not engage with 11.  It does not bear upon the error.

NETTLE J:   Well, it just seems to be reiterating their reliance upon an intent to apply Humphries v Poljak.

MR O’MEARA:   It is a discussion of Humphries v Poljak and it then goes off into that issue about whether there is a bright line between symptoms and consequences.  We do not think much turns upon it.  But certainly it is linked to 9; there is no doubt about that.  The problem that we identify is in what commences from the top of appeal book 400 and that is at paragraph 19.

NETTLE J:   That is the misinterpretation, you contend, of the judges’ formulation of the range or spectrum.

MR O’MEARA:   Correct.

NETTLE J:   But how does that trample upon or displace, to use the language of the written submissions, the Humphries v Poljak test?

MR O’MEARA:   I will deal with it by making three points, if I may, and they all deal with the formulation of paragraph 19, which is there at the top of page 400.  The first is that from the top of 400, the majority is addressing itself to a spectrum which for present purposes we will accept is found to be by the majority as a spectrum of treatment only.  Then it is said that that was only one of a number of ways in which the question of severity might be approached, each of them being incomplete.

Just stopping there for a moment, true it is that a spectrum is relevant to assessment of severity but until this case and until that paragraph the spectrum was always understood to be the range of cases.  That is clear from Dwyer, which I took your Honours to earlier, at paragraph 71 of Justice Kaye’s reasons. The spectrum was in several cases just employed as another way of talking about the range. It is the range of the whole of the case.

EDELMAN J:   That is the very question that is being asked because what the majority is referring to by the reference to spectrum here is the use of the primary judge’s spectrum and the primary judge’s spectrum is said not to have involved the Humphries formulation.

MR O’MEARA:   That is right.  That is what they have found, we say incorrectly, but nonetheless, and then it says ‑ ‑ ‑

EDELMAN J:   If that is correct, then the reference to spectrum here is not a reference to the range in the Humphries sense.

MR O’MEARA:   That is right, no, it is not, and when you read it, it does not look anything like the range of which the majority spoke in Humphries v Poljak.  It is a completely different thing.

NETTLE J:   Are not the majority here endeavouring to get to the range spoken of in Humphries v Poljak and making the point, you would say wrongly, that the judge has artificially limited the range by confining consideration to the extent of treatment?

MR O’MEARA:   I certainly agree with the latter part of what your Honour just said.  The opening part of it, which is getting to the range spoken of in Humphries v Poljak, there is a difficulty with that, which we will come to in just a moment, in our submission, but the spectrum here is it is then an introduction into a discussion of what we call individual spectra – that is, framing spectrums around features such as flashbacks, nightmares and so on, which has never been done because it has always been where does the case fit in the overall scheme of things, not looking at individual consequences, where do they fit in disembodied cases.  The range is an introduction to reality; it is not an introduction to unreality, and so ‑ ‑ ‑

NETTLE J:   But is that not the point they are making, that there are all sorts of spectra that could be contrived along the lines that the judge did?  What you really need to do is go to the range which is comprised of all of those spectra in order to assess severity.

MR O’MEARA:   We do not think that they say that in terms.  What they say is at about line 19 is that each of these spectra – it said that the judge was erroneous in so limiting it – but each of them in this form would be relevant, it is said.

NETTLE J:   Quite.  If you put them all together, you will have the range.

MR O’MEARA:   Well, you would not have – they are disembodied because the range is the individual case, the whole of the case and where a case fits against all of the whole of the other cases.  There is then descent into what is said to be the correct thing to do, at line 21, which is – and it is said there, to:

bring to account all relevant circumstances personal to the claimant –

well, that is correct and then:

and then to apply the statutory test, making a value judgment –

That would be correct too, except that there is no specific mention of the range.  There is no mention of the range as referred to in Humphries v Poljak anywhere in all of this.  What there is is the use of the word of the “range”, if you like, as in spectrum but the confusion ‑ ‑ ‑

EDELMAN J:   But that is the value judgment.

NETTLE J:   That is what they talk about at 9, when compared to the cases.

MR O’MEARA:   But then, the final point is this.  There is then reference to:

personal experience of cases –

and, of course, the range goes well beyond personal experience.

NETTLE J:   It is just saying merely assisted by personal experience.

MR O’MEARA:   And falling either side of the line which, it will be said against us, well, the lines have appeared in a couple of cases here and there.  But the point in those cases is that no one has ever suggested that anyone is looking at a line taking their eye off the whole of the range.

NETTLE J:   It sounds pretty thin to me, Mr O’Meara, if I must say so, with respect.  Say it falls on either side of the line it is simply another way of saying whether or not it is to be adjudged severe. 

MR O’MEARA:   Your Honour, in our submission, the difficulty with this paragraph is that if it is referring to Humphries it would have been easier just to say you should do what Humphries says. 

NETTLE J:   It does.  Five lines up from the bottom of it:  take account of all of the:

relevant circumstances . . . and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage cited [from Humphries v Poljak] at [9] above.

MR O’MEARA:   In our submission, that is exactly what the primary judge did in this case, exactly what the primary judge did ‑ ‑ ‑

NETTLE J:   The moment we are concentrating on whether or not these two judges of appeal have displaced and trampled upon the Humphries v Poljak test.

MR O’MEARA:   Your Honour, I cannot improve the submission that I have just made.

KIEFEL CJ:   But the other aspect of your submissions is that it is to be inferred that they did so by stating the effect of what the primary judge said at paragraph 18, regardless of how they say they themselves approached it by identifying error in what the primary judge did.  That, itself, shows they misunderstood the test in Humphries v Poljak.

MR O’MEARA:   In a nutshell.  Your Honour that is the point.  The final point made against us in respect to what the primary judge is said to have done is that the judge referred to the “upper echelon”.  Now, in our submission, we cannot improve what Justice Kaye said about that.  Justice Kaye dealt with – and it is clear from paragraph 64 at page 414 of the appeal book, his Honour comes to the submissions put in respect of ground 1 which was the misdirection ground.  The first two points there made are (a) in the second line “upper echelon” and (b):

focused on the severity of the applicant’s injury, rather than the seriousness of the consequences –

His Honour then says and refers back to the way in which these things are to be approached, and that is at 65, and then over the page at 66 notes that, in the second line:

The first two points, as argued on behalf of the applicant, are interrelated, and can be dealt with together.

So, the question of “upper echelon” is dealt with together with the question of treatment only, if you like.  Then, the paragraphs which I took your Honours to earlier follow and his Honour there twice confirmed the correctness of his Honour’s approach, his Honour the primary judge.  He did so, conferring as we noted a moment ago to the stringency in the test.

We simply say that there is no problem with talking about the upper echelon of the range because the primary judge identified that there is a vast array of cases between the start point and the end point.  What he is pointing to is the upper echelon, not the end point.  That is what is put against us, that he is looking only to the end point.  But his Honour in terms was not because he identified and referred to the “vast array” and he identified correctly the end points, and he is correct to identify the need to place this in an upper echelon, because self‑evidently it has to be a severe injury.  That is the argument directed to our ground.  May we move to the notice of contention point put against us?

KIEFEL CJ:   Yes.

MR O’MEARA:   In our outline that we have referred to this morning ‑ ‑ ‑

KIEFEL CJ:   You say it was not raised below?

MR O’MEARA:   We say it was not raised below.  My learned friend Mr Wheelahan passed to me a paragraph from the written submissions below which ‑ ‑ ‑

KIEFEL CJ:   We do not have that, I take it.

MR O’MEARA:   No, you do not have that.  There was argument in these written submissions directed to grounds 2 and 3; that is, not the reasons ground but to the plainly wrong ground, because there were three grounds in essence.  There were actually four but there were two that were argued together.  The way it was argued was misdirection is ground 1; plainly wrong, if you like, was put two ways.  Plainly wrong to find it was not severe, and the judge was constrained to find that it was severe.  That was really grounds 2 and 3 together, and then ground 4 was reasons inadequate.

Now, oddly, this, in its heading, says proposed grounds 2 and 3, the decision is plainly wrong and the reason is “inadequate”.  So it is directing itself to grounds 2 and 3, which are not the reasons grounds but it refers to the reasons in its heading. 

Then as to credit – and I will just read this - it says the primary judge did not make a finding that the applicant was not a credible witness.  On the contrary, the primary judge found that notwithstanding the attacks on her credit, most of which related to her physical history and which was not in issue, his Honour was not of the view that he should reject her evidence about the effect upon her of the accident.  However, he went on to state that he had:

reservations about the extent to which her psychological symptoms have impacted upon her life –

but did not specify what those reservations were.  That is the passage relied upon by our learned friends.  It has arisen in pretty strange circumstances, and it might show that this was argued in a somewhat confused manner below, certainly the heading would support that, but our point in response to that is that it was dealt with by all members of the Court, however it was put, and it was dealt with under the heading “Grounds 2 and 3”, in the reasoning of Justice Kaye at page 423 of the appeal book, from paragraph 92.  It was said there:

Grounds2 and 3 were argued together.  It was submitted that the decision of the judge . . . was not severe, was plainly wrong –

and in light of accepting that:

having accepted the medical evidence . . . and having found (it was contended) that the applicant was a credible witness, the judge should have concluded that the consequences to the applicant of her mental disorder satisfied the statutory test.

That is the manner in which it was addressed.  It was said – and this is picking up that proposition – that in fact there was finding that she was a credible witness.  So when you add credibility in your evidence, together with some medical evidence, then it is much more readily easily able to be accepted what her overall position is, so it is said, and that is what was said below.  Therefore, that should have propelled the primary judge to accept that she was severe.  Over the page at 95, and I go to this because all members of the court agreed in the disposition of grounds 2, 3 and 4 in this case, it is there said – it is addressing grounds 2 and 3.  It says from line 2 of paragraph 95:

The assessment of whether an applicant has suffered an injury that is serious, for the purposes of the statutory test, essentially involves matters of judgment and impression by the primary judge.  In such a case, the credibility of the applicant usually plays an integral part in the assessment by the primary judge of the nature and extent of the injury complained of by the applicant and its consequences.

Now, we went to that earlier, but his Honour is there stating it himself which is better than me saying it.  Then it says at 96, right at the bottom of that page, 424 of the appeal book:

Contrary to the submissions made on behalf of the applicant, the judge did make adverse findings against the applicant on the issue of her credibility.

The point being, it was said here there was not an adverse credit finding, and it is there said – there is there reference in the fourth line, which is at point 10 on the page:

her evidence caused the judge to have reservations about the extent to which her psychological symptoms had impacted on her life.

Stopping there, we now understand that to be the criticism made of the primary judge that the effect of the reservations was not explained.  Just stopping there because I will come to the balance of that paragraph, but legally adequate reasons – the complaint about legally adequate reasons is usually at its best when the Court of Appeal cannot work out what the primary judge did and why.  That is when reasons are usually inadequate, having regard to what was before the primary judge.  But there was no difficulty in any member of the Court of Appeal here because everybody agreed with the passage that I am coming to now, which is from point 11 on that page:

While, it is correct to observe, the judge did not reject the applicant’s evidence about the effect on her of the accident, nevertheless the judge expressly stated that he had reservations about the description of her symptoms, and the effect of those symptoms on her.  Thus, contrary to the submission of the applicant, it is not appropriate, on this application, to assess the effect of the applicant’s disorder on her by reference solely to the description of her symptoms, and the consequences, contained in her affidavits. 

Now, that is the effect of it.  The judges understood it and it is well understood that the effect is that you cannot accept the unvarnished evidence that comes out of the mouth of the plaintiff, because there are other parts of the evidence which cause you to doubt whether in its emphasis that can be correct, which is important in a case which is – in these cases are always all about emphasis and that is what that means. 

So, in short, the Court of Appeal here had no difficulty understanding and the effect of her Honour’s reasons.  We say there was certainly no legally inadequate path of reasoning because the court understood it.  But, further, and it really comes down to this and it is said against us in the respondent’s written submissions, well, the judge really had to explain what degree of disability he did accept.  We say it is quite wrong and contrary to principle. 

Here all the judge had to do was be satisfied of a statutory fact, severe or not severe, the onus was on the plaintiff.  The plaintiff had to persuade the judge.  It was not up to the judge to make findings – ultimate findings about anything other than whether the statutory fact was made out and his Honour was satisfied that that was so, that was all.  His Honour was not required to find to what degree and certainly not in circumstances where that is going to be an impossibility in a case like this.  The judge cannot accept this particular witness as an honest one and he does not accept the extent to which she asserts her difficulty as a consequence of her injury. 

So, how is he supposed to make findings as to what the true position is when he is not quite confident as to what it really might be and the what it might be is the gap between what she talks about, namely, her treatment and medications and social restrictions and so on that seem to be supported by some other evidence, and then the fact that in her emphasis she says that this is very, very bad, that there are other things going on in her life which suggest, and they are extracted in cross‑examination.  They are no part of her affidavit material and they suggest maybe that is not the whole story.  It is a matter of satisfaction in the end and there is no part of a trial judge in cases like this to go making findings other than as to the ultimate statutory fact. 

So put two ways, we say, the primary judge addressed correctly the statutory question and did it in a perfectly orthodox way which no member of the Court of Appeal took any issue with and every member of the Court of Appeal understood entirely and exactly what was meant by the finding as to restrictions.  As to whether the argument was run, well, if it was run it was run in the most elliptical, cryptic way that there ever could be and with reference to wrong headings.  If the Court pleases.

KIEFEL CJ:   Thank you, Mr O’Meara.  Yes, Mr Wheelahan.

MR WHEELAHAN:   The Court should have our outline of oral submissions.  Your Honours, at the heart of the appellant’s case before this Court is a submission that the majority departed from the guidance in Humphries v Poljak in three respects.  Firstly, it is submitted by our learned friends at paragraph 46 of their written outline that the majority’s approach cannot be reconciled with Humphries v Poljak, secondly, at paragraph 48, that the majority’s approach is fundamentally wrong, and thirdly, at paragraph 53, that the decision of the majority trampled upon and displaced Humphries v Poljak.

In response, our submission is that the reasons of the majority are faithful to the guidance in Humphries v Poljak and that is so for two reasons.  Firstly, the majority set out the material passage from Humphries v Poljak at paragraph 9 of their reasons, appeal book page 396, and, secondly, at paragraph 19 of their reasons, at appeal book 400 commencing at about line 20, the majority expressly referred to:

apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage cited at [9] above.

In our submission, the majority thereby expressly incorporated the text of the guidance in Humphries v Poljak into the material part of the majority’s reasons.  In our submission, it is not to be supposed that, having expressly adopted the guidance in Humphries v Poljak, the majority overruled, disapproved, modified or in any way qualified that guidance, still less trampled upon or displaced it.

KIEFEL CJ:   Essentially, though, it must on your argument be the case that however stated the Court of Appeal was correct to hold that the primary judge was in error.

MR WHEELAHAN:   Yes, and in our outline of oral submissions, we desire to address that point in the paragraph numbered 2 of our outline.  In the paragraph numbered 1, I wish to address the points of general principle raised by the appellant on this appeal.

In support of our submissions we have submitted to the Court that the appellant’s case does not correctly reflect the majority’s reasons.  We commence by referring the Court to paragraph 46(b) of the appellant’s written outline of submissions.  The appellant has made a submission there that the majority found that, in quotes:

all ways in which the range or spectrum might have been framed would be “incomplete” –

In response, we say that submission wrongly equates spectrum with range.  The majority did not use those terms as substitutes for each other.  The majority used the word “spectrum” in the earlier part of paragraph 19 and in paragraph 20 to the spectrum which had been set up by the primary judge.

The range is an all‑together different concept referred to by the Court in Humphries v Poljak which the majority in this case had expressly set out in paragraph 9.  The range is something which sits outside the analysis.  It is a consideration which is relevant to the evaluation of the question of serious or severe, but it imports an objective component into the evaluation.  In our submission, the correct inquiry required by the statute, as explained by the guidance in Humphries v Poljak, is not to fit individual cases within a range or within a spectrum and, particularly, within a linear spectrum.

Rather, the inquiry, which is sanctioned by the guidance in Humphries v Poljak, is a multifaceted inquiry and the range is something that sits outside that inquiry but which informs it, and the majority in Humphries v Poljak suggested that there are two tools that might be used to inject objectivity into the evaluation.  The first is judging by comparison with the range.  The second is to have regard to trends which will emerge in the decided cases which will indicate which cases fall within and outside the relevant assessment, or to use the majority’s term, whether they are on one side of the line or the other.

In our submission, the first part of paragraph 19 in the majority’s reasons at appeal book page 400 is concerned with the identification of error in the primary judge’s reasons.  From about line 20 on page 400, onwards, the focus of that paragraph shifts from the identification of the primary judge’s error to what should, in fact, occur by the express reference to Humphries v Poljak.  So, for those reasons, it is our submission that nothing in the majority’s reasons indicates that a spectrum is to be equated with the range in the sense used by the majority in Humphries v Poljak.  Returning to the ‑ ‑ ‑

KIEFEL CJ:   Even if that be so, there is still the question, is there not, arising under paragraph 18 of the majority’s decision about whether they correctly understood the primary judge’s approach.

MR WHEELAHAN:   Yes.  We will be submitting that the majority did.  I wish to take the Court, when I come to the second point in the outline of oral submissions, to the primary judge’s reasons, and in particular to paragraph 82 of the primary judge’s reasons to support our submission that the majority’s analysis was correct.

KIEFEL CJ:   Are you also going to point out where Acting Judge of Appeal Kaye went wrong?

MR WHEELAHAN:   Our submission is Justice Kaye came to a different view and, in our submission, it is evident that the majority has accepted much of what Justice Kaye has said but has disagreed with his Honour on this point and has ‑ ‑ ‑

KIEFEL CJ:   On what point?

MR WHEELAHAN:   That is, on the question whether the primary judge was in error in setting up a spectrum which had as its focus medical treatment.

GORDON J:   Justice Kaye says you cannot take 82 on its own; you have got to look at it in the context of the remaining paragraphs which follow on from it.

MR WHEELAHAN:   Yes.

GORDON J:   So are you going to address those paragraphs as well?

MR WHEELAHAN:   Yes, we are.  Material to that point is the last bullet point; that is, the seventh bullet point in paragraph 85 of the primary judge’s reasons.  Could I return to paragraph 46 of the appellant’s outline of submissions before this Court.  In 46(d) the appellant submits that:

the majority also introduced a new and unexplained concept – “the line” – which, on any view, is distinct from if not the conceptual opposite of “the range” –

That is the written submission.  Could we ask the Court to look at Mobilio v Balliotis [1998] 3 VR 833, which is in the parties’ lists of authorities? This is the principal decision of the Victorian Court of Appeal in relation to guidance to be given to the use of the word “severe” in section 93(17) of the Transport Accident Act.  We ask the Court to look at page 836 of the report, at about line 50; that is, towards the end of the page.  The Court will see that Justice Brooking, who delivered what we submit is the principal judgment in this case, used the expression “the line”.  That is in the penultimate line on page 836.

On the following page, page 837, at line 5, still in the reasons of Justice Brooking, in the middle of line 5 Justice Brooking again uses the term “the line”.  At page 841, at line 25, Justice Brooking again refers to the line; that is:

on which side of the line a case falls –

At page 858, line 34, Justice Phillips who agreed with Justice Brooking that the appeal should be dismissed, at about line 34 refers to Justice Brookings reference to “which side of the line a case falls”.  In our submission, in this case at appeal book page 400, paragraph 19 at line 31, the majority were using the phrase “the line” in the same sense used by Justices Brooking and Phillips in Mobilio v Balliotis, that is, it is just a figure of speech and it cannot tenably, in our submission, be viewed as a new test.  We come then to paragraph 46(e) of the appellant’s written submissions before this Court.  The appellant submits as follows:

ultimately, their Honours stated that the range is of “limited utility”.

That, in our submission, is not found anywhere in the majority’s reasons for judgment.  The majority did not themselves use the term “range” in that context.  The majority at paragraph 20 on page 400 referred to “the limited utility of the spectrum” but in doing so they were using the word “spectrum” as a reference to the spectrum set up by the primary judge to which they had referred in the first sentence of paragraph 20.  So, in relation to the general points of principle raised by the appellant before this Court, it is our submission, that the appellant’s case in relation to the majority’s treatment of Humphries v Poljak rests on an incorrect account of the majority’s reasons and should be rejected.

NETTLE J:   Your big problem is 18, is it not?  None of these other things about trampling on Humphries v Poljak and whether the majority were correct in saying that the judge had confined himself artificially to the extent of treatment.

MR WHEELAHAN:   Yes, I will come to that now.  We submit that there are two errors, in essence, which the majority identified in the primary judge’s reasons, particularly at paragraph 82, and they are firstly setting up a spectrum which focused on the extent of medical treatment and, secondly, in treating the guidance in Humphries v Poljak as if in order to qualify as “severe” the respondent had to be at the upper echelon of that spectrum.  Now, in our submission, it is significant that the primary judge did not even say “towards the upper echelon”. 

In appeal book, page 383 in paragraph 82 of the reasons at about line 22, the primary judge said it must be “at the upper echelon” of the spectrum.  The two errors are related.  The second error being at the upper echelon of the spectrum, is it the upper echelon of the medical treatment spectrum which had been posed by the primary judge.

GORDON J:   That is not the way Justice Kaye looked at it.  He said that when you read all of the passages in context, it was not to be dealt with that way.  Do you not have to address that?

MR WHEELAHAN:   I will, I will.

KIEFEL CJ:   Should we be engaging in this inquiry?  I raise that for this reason.  There are two aspects to the appellant’s argument put today.  The first is to show that the majority in the Court of Appeal misapplied and misunderstood the Humphries v Poljak test and the other is – that is by reference to paragraph 19 - that they may have misunderstood the primary judge’s reasoning at paragraph 18. 

The point to be agitated on this appeal is not really fleshed out in ground 2 which says simply that the primary judge misdirected himself at paragraph 82 of the primary judgment.  But on the hearing of special leave, reading from transcript page 5, line 145 onwards, the point, the problem identified to be addressed, if leave were granted, was that the majority in the Court of Appeal did not apply it.  That was the special leave point so the question is should the Court be entertaining the question of whether or not the majority, at a level of fact in a way, or reasoning, misunderstood what the primary judge was saying.

MR WHEELAHAN:   Yes, in our respectful submission, the Court should not because ultimately this latter question involves interpretation of the primary judge’s reasons in circumstances where the majority took one view and Justice Kaye took a different view and, in our submission, that is not a point of general importance for the State of Victoria or for the appellant, the Transport Accident Commission.

KIEFEL CJ:   Well, we are not dealing with whether special leave should be granted, rather the contrary.  On this question, we will have to hear obviously from Mr O’Meara, but the question I am generally putting is whether or not leave should be revoked.

MR WHEELAHAN:   Well, in our respectful submission, it should be, particularly having regard to the submissions we make about the appellant’s treatment of the way in which the majority’s reasons are to be understood.

KIEFEL CJ:   That does not preclude you from putting an alternative argument, of course, if that course was not one that the Court decided was open.

MR WHEELAHAN:   Yes.  There are two further arguments I need to put if special leave is not revoked and that is directed to supporting the majority’s interpretation of the primary judge’s analysis and secondly, the remaining point which is alive in our notice of contention and that is that the primary judge did not explain how the findings of credit bore upon the ultimate result.

GORDON J:   Before you go to that, could you just clarify for me whether or not you accept or take issue with Mr O’Meara’s submission that paragraphs – in Justice Kaye’s judgment on 72 and onwards – it is not really 72; it really starts at 70 – is a correct description and application of Humphries.   I think 73 and 74 were the ones that Mr O’Meara put particular emphasis on.

MR WHEELAHAN:   Starting with 73, Justice Kaye’s reasons are directed to grounds of appeal which invited the Court of Appeal – or the ground argued was that the ‑ ‑ ‑

GORDON J:   I understand that, but in relation to the general description of the principles do you take issue with Mr O’Meara’s submission that those paragraphs are a proper explanation of the process to be adopted by reference to Humphries?

MR WHEELAHAN:   Well, they are an explanation but if one took, for instance, paragraph 73 at about line 23 on the page, where his Honour says:

the nature and severity of any disorder may only be determined by reference to its symptomatology, the treatment required for it, and its effect on and consequences for the particular person in question.

Our submission is that there are some cases where treatment will be of less significance and perhaps ‑ ‑ ‑

GORDON J:   Well, he goes on to say they are interrelated.

MR WHEELAHAN:   These are general statements and if I may give an example one of the cases we cite in relation to our notice of contention is the decision of the Victorian Court of Appeal in Hunter v Transport Commission (2005) 43 MVR 130. Now, in that case, the successful applicant/appellant was undergoing very little in the way of treatment but the consequence which was significant, indeed severe, in that case was the applicant’s loss of vocation as a teacher and loss of earning capacity.

Now, in our submission, it is correct not to seek to reinterpret the general guidance given by Justice Brooking in Mobilio v Balliotis, the general guidance being – and this is stated by Justice Kaye; if we have the appeal book open, at page 414, at about line 43:

The word ‘severe’, in that definition, is of stronger force than ‘serious’ –

The legislation does not descend into these sorts of tests.  The nature of cases which might engage the legislation will vary immensely and, in our submission - it is for those reasons that we do not embrace what Justice Kaye says at paragraph 73 because it has a tendency in our submission to be formulaic, whereas what is required is flexibility.

Could I return then to our submissions as to the why the majority was correct to identify the two errors in the primary judge’s reasons which I have identified?  Our learned friend took the Court to paragraph 29 of the primary judge’s reasons at page 368 to 369 of the appeal book.  The judge enumerated 11 consequences of which the respondent complained and our learned friend referred to many of them.  It is our submission that when we come to the judge’s reasons, particularly at paragraphs 83 to 85 – the judge appears substantially to accept the existence of all those consequences. 

Could I turn then to paragraph 78, which is on appeal book page 381?  It is significant for our submission that the primary judge’s reservations about the respondent’s credit did not lead his Honour to reject the respondent’s:

evidence about the effect upon her of the accident –

But, in his Honour’s words, at appeal book page 381, at about line 33, caused him to have:

reservations about the extent to which her psychological symptoms have impacted upon her life –

At paragraph 79, the primary judge accepted the medical opinions to which his Honour referred – that the respondent had:

suffered Post‑Traumatic Stress Disorder and either a Major Depressive Disorder, or an Adjustment Disorder –

On the question of causation – at paragraph 81, at about line 34 on page 382 of the appeal book – the judge found that the respondent’s:

current psychological symptoms are substantially related to the accident –

At paragraph 83 – I will come back to paragraph 82 - on page 383 of the appeal book, the judge accepted that the respondent suffered:

a range of symptoms –

of which there were seven, firstly:

flashbacks and nightmares –

The judge says – this is in relation to the flashbacks and nightmares – at about line 30 on page 383:

in part, at least, effectively treated –

We submit though that the judge did not say whether or not his Honour accepted or rejected the respondent’s evidence on the topic of nightmares which appears in the respondent’s affidavit at page 369 of the appeal book, paragraphs 30 and 31 – I will not take the Court to these pages – and in re‑examination of the respondent at appeal book, pages 141, line 24 to 142, line 10. 

The tenor of that evidence from the respondent was that the nightmares were of varying intensity and frequency and would wake her up.  The second consequence the judge identifies is fear of driving; thirdly, loss of confidence; fourthly, stress; fifthly, anxiety; sixthly, inability to concentrate and order her thoughts.  Seventhly, and of significance to the respondent was that the disorder prevented her from undertaking ongoing studies and the evidence was that the respondent had intended to undertake a Master’s degree in Greek history.  That appears in her second affidavit at page 162 of the appeal book.  It is also the subject of unchallenged evidence from the respondent’s daughter in an affidavit at paragraph 5 appearing at page 165 of the appeal book and in paragraph 15 at 168 of the appeal book.

GORDON J:   Mr Wheelahan, could you just explain to me why we are going through this material in the context of establishing that the majority had dealt with the primary judge in the way it did.

MR WHEELAHAN:   Because I want to support the majority’s observation that having regard to the findings that the primary judge made, it is puzzling why these consequences were not regarded as severe and the likely explanation is that the primary judge misdirected himself.  That is the point of this submission.  Now, at paragraph 84 ‑ ‑ ‑

KIEFEL CJ:   That is an appeal to pure logic, is it?

MR WHEELAHAN:   Yes, it is, but it is a point that was relevant to the majority in their reasoning.  It was a submission that was made to the court and the court refers to this observation at paragraph 24 of their reasons at appeal book, page 401.

KIEFEL CJ:   I think we have traversed the reasons sufficiently.

MR WHEELAHAN:   Yes, if your Honour pleases.

KIEFEL CJ:   It is your notice of contention, I think.

MR WHEELAHAN:   I said I wanted to go back to paragraph 82 of the primary judge’s reasons ‑ ‑ ‑

KIEFEL CJ:   Yes, I am sorry, you did.

MR WHEELAHAN:    ‑ ‑ ‑ which is where we say that the twofold or the two errors appear.  Paragraph 82 is on page 383 of the appeal book.  Now, in our submission, using a metaphor, the primary judge here has set up a linear spectrum.  The linear spectrum has at one end no medical intervention in relation to mild anxiety.  Now, just pausing there, that would not be relevant for the purposes of section 93(17) because in order to qualify, the disturbance or disorder has to be long term.  His Honour, in our submission, is referring to a resolved injury at one end of his Honour’s spectrum.  The other end of the spectrum, in our submission, is characterised by the extensive medical treatment and medication in relation to psychoses, admission to psychiatric hospitals as an inpatient.  His Honour refers to:

delusional beliefs and thoughts, suicidal ideation and suicide attempts.

Again it is our submission by way of observation that if those criteria were applied to the appellant, Mrs Hunter, in Hunter v Transport Accident Commission – I gave the reference earlier – who is to be regarded as a member of the range, Mrs Hunter would undoubtedly fail.

The second of five submissions we make about paragraph 82 is that the consequences referred to by the judge in the impugned passage in paragraph 82 are either the symptoms themselves or the medical treatment of them.  There are no references to other consequences such as impairment of thinking processes, impairment of social interaction, loss of sleep, feelings of anxiety, confusion, inability to pursue study or hobby or other recreational activity such as reading.  The focus of the impugned passage is on medical diagnoses, symptoms and treatment.  The third point is that the judge said, at paragraph 82:

It follows that for a mental disorder to be described as being “severe”, it is at –

not “towards” but “at”:

the upper echelon of those disorders -

Now the disorders, in our submission, are to be understood as being the disorders to which his Honour referred at the end of the medical treatment spectrum.

The fourth point we make is that it follows, in our submission, that what the primary judge set out at paragraph 85, which is what the primary judge described as the capacities that the respondent had retained is in contradistinction.  In our submission that is supported by the last – that is, the seventh – bullet point in paragraph 85 at page 384 of the appeal book, where the primary judge refers to the absence of admission of an inpatient in any psychiatric institution. 

That is where his Honour’s medical treatment linear spectrum is engaged as a material part of his Honour’s analysis.  One of the reasons his Honour gives for rejecting the respondent’s application is that she did not suffer “the more extreme symptoms of psychological trauma as described above”.  In our submission that must be understood to be a reference to what his Honour had set out in paragraph 82.

The fifth point is that that last bullet point must be understood as being part of what his Honour referred to as the balancing exercise but, in our submission, the statute does not require a balancing exercise.  The statute is concerned with characterisation and our learned friend has referred to this Court’s – the Court of Appeal’s decision in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.

Paragraph 27 of the reasons of Justice Ashley in that case, with whom your Honour Justice Nettle and Justice Dodds‑Streeton agreed, is often relied upon as supporting this idea that there is a balancing exercise.  But, in our submission, what Justice Ashley said in paragraph 27 was not that there was a balancing exercise but rather what has been retained may inform the significance of what has been lost.  In our submission, that is quite different. 

His Honour here has engaged in this balancing exercise where the respondent’s ownership of rental properties which are managed by an agent and her own – the respondent’s ownership of a taxi licence where the evidence was she checks that the money comes in on her computer - is balanced by his Honour against the respondent’s loss of her ability to study history at university. 

In our submission, it is an inapt comparison and it reinforces why what was at the heart of his Honour’s reasons was the idea that the respondent was not at the upper echelon of the medical treatment spectrum.  That was not the approach adopted by Justice Kaye and our submission simply is Justice Kaye took a different view.  His Honour’s view is not the correct view having regard to the submissions we make. 

I move then to the notice of contention.  There are two points we made in our written submissions.  One was concerned with the judge’s treatment of credit.  The other was concerned with whether his Honour made sufficient findings about the medical evidence.  We abandon the second point and therefore we do not pursue the arguments set out in paragraphs 35 to 40 of our written submissions.

Our submission is that the primary judge gave inadequate reasons in relation to the effect, if any, of the credit findings which his Honour made and to which the Court has been taken and his Honour did not explain how those credit findings bore upon firstly, the finding of primary fact in paragraphs 83, 84 and 85 of his Honour’s reasons or the judge’s evaluation at paragraph 86. 

Now, our submission is, looked at as a whole and in particular having regard to the extent to which his Honour analysed the question of credit, it appears that the question of credit was an important, if not essential part of his Honour’s reasoning.

KIEFEL CJ:   What do you say, though, to the submission that this is not a point that you took below?

MR WHEELAHAN:   To that submission we say the following.  Firstly, it was not raised in the appellant’s reply submissions filed with this Court.  The point that it was not raised below is raised for the first time in the outline of oral ‑ ‑ ‑

KIEFEL CJ:   Well, I do not think it is answered by saying they did not raise it in the first instance here.  It was either raised or it was not below.

MR WHEELAHAN:   We submit it was raised and if it is convenient to the Court we would like to provide the Court with clean copy of the written case of my client before the Court of Appeal below and our submission is that the point was raised in section D of that written case, the heading of which is “Proposed Grounds 2 and 3” ‑ ‑ ‑

KIEFEL CJ:   Is that the document from which Mr O’Meara read?

MR WHEELAHAN:   Yes, yes and so we rely upon in particular paragraphs 19 and 20 of that document and we also rely upon paragraph 27 of the document.  The document does not have a separate heading, “Ground 4, Inadequacy of Reasons”.

KIEFEL CJ:   Perhaps you should hand it up, Mr Wheelahan.

MR WHEELAHAN:   The only copy I have is my own copy.

KIEFEL CJ:   Well, provide it immediately after.

MR WHEELAHAN:   Yes, because I was not anticipating that submission to be made ‑ ‑ ‑

KIEFEL CJ:   Very well.

MR WHEELAHAN:   We seek the Court’s leave to provide copies to the Court, once Court rises so the Court can then evaluate the parties’ submissions.

KIEFEL CJ:   Yes.

MR WHEELAHAN:   So returning then to the submission we make in relation to this point, the primary judge said that he held reservations about the extent to which the respondent’s psychological symptoms have impacted on her life but that finding has to be reconciled with the positive primary findings which his Honour made, which are set out in paragraphs 83 to 85.

In our submission, for his Honour to say no more than I have reservations, having regard to the positive findings that his Honour made, was cryptic and it does not reveal whether, and if so how, those reservations undermine the accepted consequences of the respondent’s injury which his Honour had identified at paragraphs 83 and 84, appeal book page 383. 

Now, the final point we make on the notice of contention is one of the justifications for the requirement that judges give adequate reasons in relation to findings of fact, findings of primary fact and furthermore in this case, the evaluation required by the statute, is to facilitate appellate review.

Could we take the Court to page 425 of the appeal book and to the reasons of Justice Kaye at paragraph 96.  One of the grounds of appeal argued before the Court of Appeal below, which is not before this Court, is that on the facts, that is, on the merits, the primary judge’s decision was plainly wrong. 

That ground was rejected for reasons including the fact that the primary judge had reservations about the applicant’s credibility.  That is referred to at the top of page 425.  Towards the end of that paragraph, 96, at about lines 18 to 21, the existence of the judge’s finding on credit is really dispositive of this ground of appeal.

Our submission is that a judgment cannot be immunised from appellate scrutiny by broad‑brush credit findings, expressions about reservation which remain unexplained – and that is what has happened here.  The respondent’s case has simply been tainted by these credit findings and there has been no attempt by the primary judge to reconcile the credit findings with the findings of primary fact or to explain how they bore upon the ultimate conclusion in paragraph 86 of his Honour’s reasons.  If the Court pleases, they are our submissions.

KIEFEL CJ:   Thank you.  Yes, Mr O’Meara, I imagine you have a reply.

MR O’MEARA:   Yes, your Honour.  May we deal first with the question your Honour raised - your Honour the Chief Justice – concerning the ground of appeal?

KIEFEL CJ:   Yes.

MR O’MEARA:   Come directly to that.  The significance in the ground of appeal is this.  Our contention is that paragraph 82 of the primary judge’s reasons is the language of Humphries.  If the Court goes to it, that paragraph when read as a whole, not pulled apart with different passages, and so on – but when read as a whole is directed, correctly and in terms, to Humphries.  It is starting at 382 of the appeal book, two lines from the bottom of the page:

In order to satisfy the test posted in ss(c), the consequences arising from a transport accident must be more substantial than the test posed under ss(a); that is, that they must be more than “very considerable” when a comparison is made with other cases in the possible range of impairments.

That is Humphries.  Then, it says:

Thus, consideration must be given to the vast array of mental disorders which may be encountered following a transport accident.

That is Humphries.  Then, it says:

At one end of the spectrum –

and so on.  It is addressing itself directly to Humphries.  The difficulty is that the Court of Appeal has found that passage to have been directed to something else, it seems, but there is doubt about it.  In doing so, the Court of Appeal says the primary judge is wrong.  In our submission, the court – the argument today is obviously being conducted very clearly and at an elevated level but the significance of this point is that it arises in courtrooms every day and not at this elevated level. 

The problem is the contrast between the primary judge directing himself quite squarely to Humphries and being found to have been wrong to do so and then paragraph 19 which, it is said against us, refers to Humphries but, as we said, it is not quite Humphries as we know it.  That is the difficulty.  It causes trouble, in short; paragraph 19, if it is consistent with Humphries, in our submission, should be said to be consistent with Humphries, because elsewhere it will be said that it is not and that is where trouble starts.

The second point made against us in the course of our learned friend’s submissions was the question of the range or the spectrum posed by the judge, with reference to paragraph 85 of the primary judge’s reasons and the seventh bullet point.  In taking your Honours to that point our learned friend referred to the last couple of lines of that bullet point, at appeal book 384.

That bullet point exists among seven bullet points – and Justice Kaye made this point – the first six bullet points are directed very clearly to consequences of injury:  loss of independence but living independently, able to drive a car, able to look after grandchildren, involved with grandchildren, social life and managing properties and so on.  They are all consequences.  They are some of the points that Justice Kaye pointed to in order to say that his Honour had directed himself not simply to treatment but to all of the other features of the case.

Point 7, at line 40, which follows it, commences by acknowledging the considerable treatment and medication received.  But it makes the point that she has not been an inpatient in a psychiatric institution, nor suffered the more extreme symptoms.

This is not a case like Hunter.  Hunter was a case where there was a loss of occupation.  This is a case where there is no loss of occupation but there was, as I said earlier, significant focus upon the treatment received and the judge acknowledges the treatment received but where to place that in the scheme of things, whether it is linear or some other form of diagram, it is in the range of these cases as you look at them.

In this case, treatment was important and his Honour was right to address it and he acknowledged that it was considerable treatment.  He is making the point, however, that it is not, as he described correctly, said to be incorrect at the outer end but he is not saying it has to be at the outer end; he is just saying it has to be at the upper echelon.

There is nothing wrong with the upper echelon because it has to be severe in our submission.  We, in our submission, say there is nothing wrong at all with the bullet point.  It is not limiting or unduly focusing narrowly or creating any conditions precedent; it is not said to.  It is merely making the point that this is not the case which is right at the outer margin.  It is somewhere in what the judge describes earlier in that paragraph 82 as the vast array of mental disorders between and it has to be assessed accordingly.

The final point concerns the issue of the reasons and our points here are twofold.  This Court acknowledged in Whisprun at paragraph 63, without going to it, just to give you the reference, that the court should be slow to criticise a trial judge’s reasons based upon the assertion that there has been a failure to consider the party’s case, that is because the consequence of that is to set an unbelievable burden for trial judges to deal with absolutely everything in the minutest detail and ends up with arid arguments about whether more could be written and we are in a life of limited time and limited writing, all perfectly sensible. 

The real rub in the reasons cases is, is something put that was just frankly not dealt with?  That is the real nub of these cases and that is not this case.  All of the issues in the serious injury application were before the judge and he dealt with all of them.  Credit was before him and he dealt

with that as well.  He could not accept the extent to which she claimed extremity in her disability or loss of capacity.  That is perfectly straightforward and well understood in a case like this. 

The test really is how well it was understood by Justice Kaye.  He understood it at paragraph 96, he understood what it meant, and he went on to say, at paragraph 100, that this was significant because she had given evidence extensively before him.  He had the benefit – that is, the primary judge – of seeing the way in which she gave that evidence and he was not impressed, and she was not honest and she could not be believed. 

As I said at the outset, that was intended to be and probably is uncontroversial; it made her life very difficult.  She should understand from that finding why she lost.  In the Court of Appeal all members of them agreed with that passage of reasoning of Justice Kaye at 96 to 100, and they all understood it.  That is the test.  If the Court pleases.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until 9.30 am tomorrow.

AT 11.41 AM THE MATTER WAS ADJOURNED