Barlow & Anor v Hollis [2000] VSCA 26

15. The respondent was born on 29 September 1969 in Portland, Victoria. He left school in Year 11 and holds no qualifications other than a fork-lift driver's licence. He was involved in two transport accidents, the first being an intersection collision in Caulfield on 27 August 1992 when he was almost 23 years of age. At the time of the collision he was riding his motorcycle. His Honour found that the respondent sustained a number of injuries in the accident, including a fracture of the right scaphoid bone of the right wrist (which was the focus of the hearing before his Honour). His Honour also noted that the respondent suffered in that accident an injury to his left leg involving a fracture which required fairly serious operative treatment but that this injury was not relevant to the leave application. As a result of the accident, the respondent was admitted to the Alfred Hospital where his wrist injury was treated by immobilisation and a plaster cast in which it remained for some ten weeks. As a result, the respondent was unable to use his right arm at all for approximately four months. Notwithstanding this procedure, the bone did not heal and nearly two years later, in May 1994, his wrist was operated on. A bone graft was taken from his hip and a screw was inserted in an attempt to stabilise the scaphoid process and to encourage bony union. His Honour said that at the time of the hearing (being five years after the operation), the union had not taken place. The respondent complains of loss of movement and function in his wrist, together with aches and pains and feeling of weakness and a loss of grip strength. He is right-hand dominant and says that attempts by him to rely more on his left hand have not been successful.

18. The second transport accident occurred in January 1994 when he was again riding his motorcycle which collided with a vehicle. As a result of the accident, the respondent suffered potentially serious injuries including a fracture of his right femur requiring internal fixation but these injuries proved not to be relevant to the leave application.

21. At the time of the 1992 accident, the respondent was working as a motorcycle courier. The employment involved delivering on his own motorcycle various articles and items as directed by a central dispatch organisation. His Honour described the respondent, who was by then almost 30 years of age, as having "if not an addiction, certainly an enormous affection for the motorcycle as a means of recreation and transport". He is the owner of a large motorcycle but as part of his current duties as a postman in Queensland, he rides a low-powered motor scooter for approximately two hours per day. Before working as a motorcycle courier, the respondent had worked as a storeman for approximately two years and for 12 months or so operated in partnership a business which wrecked cars and sold parts.

24. The medical evidence before his Honour can be briefly summarised. The respondent saw Mr. McNicoll Smith, an orthopaedic surgeon, on 25 May 1994 which was not long after the grafting operation on his wrist and when it must have been difficult to make a meaningful assessment of the success of the operation. Nevertheless, the surgeon reported that "the outcome of the fixation procedure was in some doubt owing to vascular changes in the proximal pole which may lead to failure of the bone graft". As events turned out, his concern was fully justified. Mr. King, an orthopaedic surgeon and the then director of orthopaedic surgery at the Royal Melbourne Hospital, saw the respondent on a number of occasions, the last being in January 1998. In July 1994 he opined that the injury was a significant disability and that the loss of function to the right upper limb was likely to deteriorate further over the next five to ten years. In January 1998 he opined that the respondent had a stiff, painful and weak right wrist which represented a major impairment of function in the right upper limb in an otherwise fit, active young man and was likely gradually to deteriorate and cause further trouble over the next five to ten years. More particularly, as his Honour observed, Mr. King was of the view that the respondent's wrist had become worse and that there was marked limitation of its movements, the movement being limited by discomfort. He also noted that there was a moderate wasting of the forearm muscles and that there was a mild weakness in grip. He said that he thought that the major problem of the stiff right wrist was one which he would have to assume was the site of secondary osteoarthritic change. This represented a major impairment of function in the right upper limb which was likely to deteriorate gradually over the next five to ten years. He thought that although the respondent could cope with his present job which he described as light, involving as it did postal delivery and sorting, his wrist would not stand up to heavy manual work involving standing, lifting and straining. He thought that problems with the right upper limb would always significantly interfere with the respondent's ability to do heavy manual work.

27. The respondent was also examined by each of Messrs. Dooley, Shannon and Miller, orthopaedic surgeons. Their reports were put into evidence. Their essence, when taken together, was that there was:

- a possibility that further surgery may be required

- a development of avascular necrosis in the region

- a significant risk of development of arthritis in the joint.

The prognosis in relation to the injury was only fair.

36. Mr. Doig, the treating surgeon, also reported that the respondent may well continue to have troubles with his wrist. He opined that the prognosis was guarded and that it was certainly possible that the respondent would require further surgery although at the time of his report that was not required.

39. Mr. Slattery was the only medical expert who expressed any optimism about the injury, albeit in non-definitive terms. He opined in January 1999 that the respondent's residual symptoms appeared to be due to the non-union of the fracture of the right scaphoid bone, that he required further treatment by way of surgery and that if he were to have a successful operation "it would be anticipated that most of his symptoms should resolve and that he should be capable of most types of work".

42. His Honour recognised that the respondent is at the moment able to carry out his day-to-day domestic activities and his work, albeit with some pain and inconvenience. He held that notwithstanding this, given that the respondent was an unskilled right-hand dominant person and having regard to the prognosis which is consistent with long-term impairment of the function of his right hand, the respondent suffered from a serious injury. His Honour went on to say that he did not accept that "some undescribed operation, if successful, will have some magical effect upon the function of the applicant's wrist". This was clearly a rejection by the judge of Mr. Slattery's report.

45. Mr. Gorton who appeared with Messrs. Fowler and Solomon for the appellants attacked his Honour's decision in a number of ways. First, he contended that the decision was plainly wrong in that, on the material, it was not open for his Honour to conclude that the respondent's wrist injury amounted to a serious long-term impairment of a body function within the meaning of the Act. In that context, it was also argued that his Honour failed to make relevant findings necessary to support his conclusion. It was next said in the alternative that his Honour's decision was vitiated by reason of a number of errors of law, namely:

(a) His Honour compared the respondent's wrist injury with a range of potential wrist injuries rather than comparing the impairment flowing from it with "the whole range of possible impairments" in accordance with the test formulated by Crockett and Southwell, JJ. in Humphries v. Poljak.[1] Further or alternatively, his Honour failed to demonstrate in his judgment that he had made the required comparison.

(b) His Honour considered the injury to be serious, rather than considering whether the impairment or loss of a body function resulting from the injury, was serious and long-term.

(c) His Honour failed to determine whether the consequences of the impairment or loss of a body function were serious to the respondent.

(d) His Honour failed to give adequate reasons for his decision.

52. I turn first to consider Mr. Gorton's submission that his Honour failed to make the relevant findings necessary to support his decision and to give adequate reasons for his decision. As to the first matter, the principal submissions were that:

(a) in relation to the medical issues, it was not sufficient for his Honour merely to summarise the medical evidence; such summary could not be a substitute for findings of facts;

(b) his Honour made no findings as to the extent of the respondent's pain and suffering or the extent to which the impairment arising from the wrist injury affected the plaintiff's enjoyment of life and work prospects;

(c) his Honour failed to make any findings as to the respondent's pecuniary loss flowing from the impairment and that it was not clear whether his Honour took that factor into account in reaching his decision; and

(d) his Honour did not have regard to the effect on the respondent of the other injuries suffered by him in the two accidents.

58. In considering whether a judge has set out his or her findings and reasons with sufficient particularity in a case such as the present, it is necessary to have regard to the nature of the proceeding. As McGarvie, J. explained in Humphries v. Poljak[2], the resolution of the ultimate issue in an application for leave to proceed under s.93(4) of the Act involves "elements of fact, degree and value judgment". It has been recognised that what is ultimately called for in such a proceeding is the expression of an opinion by the judge on the question of whether the injury is "serious", having regard to his experience and the matters properly put before him (Fleming v. Hutchinson[3]; Mobilio v. Balliotis[4]; Cropp v. Transport Accident Commission & Anor[5]; The State of Victoria v. Glover[6]). In Mobilio v. Balliotis[7] the President and Brooking, J.A. likened the ultimate decision-making process in such a leave application to an assessment of damages for non-economic loss. Moreover, although the applicant must establish serious injury on the balance of probabilities and not merely by way of a prima facie case (Palmer Tube Mills v. Semi[8]), there seems to be an element of a summary process in such proceedings possibly because they are conducted in the knowledge that should they be successful, most of the matters that have been canvassed in the course of an application will be dealt with again during the trial, a situation which Brooking, J.A. described in Petkovski v. Galletti[9] as "lamentable". To some extent, the Rules and the County Court Practice Note of 20 July 1992 reflect this in the sense that their combined operation produces the result that in most cases of this nature evidence is given by way of affidavit, or by way of exhibits to affidavits in the case of medical expert opinion, and there is some limit on cross-examination of the experts.

61. It is not surprising, therefore, that judgments which are concerned with determining whether the injury was "serious" are usually less detailed than those given after the trial of the action. As the President pointed out during the hearing of the appeal, it is usual that in cases such as the present, the judgment merely contains a summary of the evidence, makes reference to the principal facts which are considered to be relevant to the decision and then sets out the ultimate conclusion. The mere fact that some matters which might be relevant to the decision are not mentioned, does not necessarily mean that they were disregarded. By way of example, the President referred to the analysis undertaken by Crockett and Southwell, JJ. in Humphries v. Poljak of Stone v. Jarvis[10] which was one of the individual applications that was before them by way of appeal. In their analysis of that case, their Honours referred essentially to the relevant material including medical reports, the competing contentions of the parties and to the prognosis of the injury. Having done that, they merely said that the injury was "serious". The President observed that it was readily apparent that their Honours assumed without setting it out in the judgment, a number of factors that were relevant to the ultimate decision, including, for example, that the injury would have a detrimental impact on the applicant's recreational activities.

64. Thus, although a judgment upon an application for leave to bring a proceeding for damages should set out the relevant evidence (without necessarily doing so in detail), the material facts and the steps in the reasoning process so as to make clear the basis upon which the decision was made (as to the latter see Beale v. Government Insurance Office (N.S.W.)[11]; Cropp[12]), given the nature of the proceeding, one would not expect that ordinarily these matters would be canvassed with the same degree of particularity as might be appropriate in a judgment upon the ultimate trial of the action.

67. Turning to his Honour's consideration of the material facts, it is apparent that he accepted the evidence of all the medical experts other than Mr. Slattery and it was not contended by Mr. Gorton that it was not open for him to have done so. In my opinion, his Honour's summary of the medical evidence and of the respondent's personal position makes it readily apparent what his findings were in relation to the existence and extent of the injury and the pain and suffering and impairment flowing from it. The judgment also makes it obvious that his Honour had regard to the prospect of the respondent suffering pecuniary disadvantage by reason of the impairment. His Honour referred to the respondent's personal and medical position, more particularly that he is unskilled, right-hand dominant and is a young person who, because of the impairment, will be deprived of the opportunity of engaging in heavy work (and thereby earning greater income). That the opportunity of doing other work has been denied to him, is clearly relevant for the purpose of considering what effect the impairment will have on the respondent (Glover[13] per Ormiston, J.A.). The mere fact that his Honour did not quantify such pecuniary disadvantage does not mean that he was nevertheless not able properly to conclude that the respondent's earning capacity has been reduced by reason of the wrist injury (and I did not understand Mr. Gorton to have contended to the contrary). By recognising that the respondent was precluded from undertaking heavy work because of his injury, his Honour thereby recognised that he was likely to suffer pecuniary disadvantage as a result of the impairment and in my view, it was open for his Honour so to find on the material before him.

70. That his Honour did not refer in his judgment to the other injuries suffered by the respondent in the two accidents, shows in the context of this case that he did not regard them as relevant to his analysis. This is not surprising, given that the appellants' case before his Honour was that those injuries had no relevant effect on the respondent and, as his Honour observed, the respondent's counsel pressed the case in relation to those injuries but faintly. Furthermore, the report of Mr. Miller of 13 December 1998 indicated that the prognosis in relation to those injuries varied from good to excellent.

73. Thus, in my view, his Honour made it readily apparent in his reasons for judgment what were the facts on which he based his decision.

76. It is also my view that it was open for his Honour to find on the whole of the material that the respondent suffered from a serious long-term impairment of a body function, namely, his right arm. Mr. Gorton submitted that the respondent's injury was no more than a sore wrist with some wasting in the right arm. He contended that, notwithstanding that it had not shown improvement since 1992, the injury has not interfered with the respondent's ordinary activities and has not prevented him from pursuing those he would have undertaken but for the accident. In my view, however, the preponderance of the medical evidence clearly shows that the bones in the right wrist have not yet joined, that the respondent was developing or was likely to develop arthritis in the wrist, that there were problems with blood circulation in the area, that the injury was progressively deteriorating and was likely to continue to do so during the next five to ten years with associated pains, that the respondent may require a further operation in respect of it and that all this bore directly on the respondent's life. Thus, it was open for his Honour to find on that evidence and the other material before him that the injury had considerably impaired the function of the respondent's right upper limb and had detrimentally affected his enjoyment of life, including recreational activities and working prospects and that these matters amounted to a serious long-term impairment of a body function.

79. I turn next to Mr. Gorton's submission that his Honour failed to give adequate reasons for his decision. In essence, the submission was that his Honour did not state the basis on which he concluded that the injury was "serious". It was said, in effect, that his Honour did not explain how he reached the ultimate conclusion; the mere recitation of the evidence followed by the ultimate conclusion deprived the parties and the Court, so it was said, from knowing by what process of reasoning his Honour reached his decision. Consequently, it was submitted, his Honour's failure to give adequate reasons amounted to an error of law which vitiated the decision.

82. In my view, however, his Honour's reasons for his decision were adequate. The ultimate finding which he made did not allow for much elaboration given that it involved a value judgment on his part. Moreover, for reasons I have given, his 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. In those circumstances, it cannot be said that there was a failure by his Honour to give adequate reasons for his decision (see Cropp[14] and Beale[15]).

85. Thus, having regard to the matters to which I have referred, the first part of Mr. Gorton's attack on his Honour's decision fails.

88. I now turn to consider whether his Honour made the other specific errors for which Mr. Gorton contended and to which I have referred earlier. The submission that his Honour applied the wrong test in determining whether the injury was "serious" was based essentially on what his Honour said in the last sentence of the judgment, namely:

"I do not ignore the burden of proof in this regard but in face of that to which I have referred, I cannot accept other than that the applicant has, when compared with other wrist injuries, a very significant injury which is going to be long-term".

It was contended that in that passage his Honour made it apparent that, for the purpose of determining whether the respondent suffered a serious long-term impairment of a body function, he compared (erroneously) the respondent's wrist injury with other wrist injuries rather than contrasting the impairment of the plaintiff's right forearm or wrist with other "cases in the range of possible impairments or losses" (Humphries v. Poljak[16]).

93. In my view, however, when one considers the judgment as a whole, it is clear enough that his Honour was not saying in that sentence that he was making the comparison referred to in it for the purpose of or in the context of determining whether the injury was "serious". Rather, he was responding in a short-hand way to an argument that was probably put to him on behalf of the appellants (which was also put in the course of argument on this appeal), namely, that the injury to the wrist was a relatively minor one.

96. His Honour's judgment was structured as follows. At the outset, he said that in determining the ultimate question, he would apply the tests found in a number of cases which he identified. Mr. Gorton agreed that his Honour referred to the correct cases. The tests set out in those authorities include, of course, the comparison stated in Humphries v. Poljak[17] to which reference has been made earlier. His Honour then referred to the difficulty in assessing the gravity of an injury to the wrist of a dominant hand and to the importance of the hand to the existence and use of the upper limb. The learned trial judge then considered the medical reports, particularly the last report of Mr. King to which I have already referred and in particular, to the unfavourable prognosis of the injury and the effect of the impairment on the respondent's future. He then concluded in the penultimate paragraph of his judgment that the injury was "serious". Thus, to that point in the judgment, no identifiable error of the sort now under consideration was made by his Honour.

99. Having stated his ultimate conclusion, his Honour dealt briefly in the last paragraph of his judgment with some of the appellants' submissions so as to emphasise that he had not disregarded them. It is in that context that his Honour said that the respondent's wrist injury was "very significant". In my view, his Honour was not seeking thereby to explain what comparison he made for the purpose of determining if the injury was "serious". He was, as I have said earlier, rejecting the appellants' submission that the wrist injury was a minor one; in his view it was "very serious". It was clearly open for his Honour to come to such a conclusion on all the evidence before him. Thus, there is nothing in his Honour's reasons to indicate that he failed to apply the correct test in its various parts.

102. Consequently this ground and the alternative to it have not been made out.

105. I now turn to deal with the second specific error allegedly made by the learned judge. It was submitted that his Honour determined that the injury itself rather than the impairment or loss of a body function resulting from it was serious and long-term. In my view, however, this ground has no merit. The passages from his Honour's judgment to which I have referred earlier, particularly his Honour's references to the medical text and to Mr. King's most recent opinion, and his consideration of the respondent's domestic and employment future in light of the injury, make it abundantly clear that he dealt adequately with the serious and long-term effect of the impairment of the body function and did not confine himself in this respect to the wrist.

108. It was next submitted that his Honour failed to determine whether the consequences of the impairment or loss of a body function were serious to the respondent. The argument advanced on the appellants' behalf, as I understand it, was that his Honour failed to identify the consequences of the impairment and that showed that he did not consider properly whether the impairment was serious to the respondent. In particular, it was argued that his Honour did not find any demonstrated loss of earning capacity that would flow from the impairment. In my view, however, it is clear from the judgment that his Honour analysed the consequence of the impairment or loss of body function from the perspective of the respondent. There are a number of factors pointing to this conclusion. First, it is clear from the references to the medical text and the medical opinions, that his Honour regarded the body function which has been impaired by the injury as the respondent's right upper limb. It is also clear that his Honour considered sufficiently what were the consequences of the impairment and in particular, how they related to the respondent's position from the point of view of his enjoyment of life and work capacity. Next, it will be recalled that a principal basis of the appellants' opposition to the respondent's application for leave before his Honour was that notwithstanding the injury, the respondent was able to live a reasonably normal life, was employed and was coping adequately with his work situation. This squarely raised the issue of the consequence for the respondent of the impairment, more particularly as to its effect on his work prospects and interference with enjoyment of life (Ninkovic v. Pajvancek[18]). His Honour's reasoning and ultimate conclusion make it clear that he rejected this submission and concluded that the impairment would have a detrimental effect on the respondent's enjoyment of life and employment prospects. These were matters which obviously went to the seriousness of the impairment to the respondent. Further, that his Honour considered the seriousness of the consequences of the impairment to the respondent is also evidenced by the passages in his judgment in which he canvasses the opinion of Mr. King about the effect of the impairment, its likely deterioration in the future and the impact of that on the respondent. In a later part of his judgment, his Honour deals again with the effect of the impairment on the respondent's domestic activities and work situation, having earlier recognised that the respondent was a relatively young man, unskilled, right-hand dominant and with little by way of education that was relevant to employment.

111. Thus, in my view, his Honour's judgment as a whole demonstrates that he considered whether the consequences of the impairment or loss of body function were serious to the respondent and concluded that they were. Consequently, in my view, this ground of appeal fails.

114. For the above reasons, it is my view that this appeal should fail.

[1] [1992] VicRp 58; [1992] 2 V.R. 129 at 140

[3] (1991) 66 A.L.J.R. 211

[4] [1998] 3 V.R. 833 at 836

[5] [1998] 3 V.R. 357 at 366

[6] [1998] VSCA 93 at para.[27]

[8] [1998] 4 V.R. 439 at 448 per Brooking, J.A.

[9] [1994] VicRp 32; [1994] 1 V.R. 436 at 437

[10] Dealt with by their Honours at 146-148

[11] (1997) 25 MVR 373 at 385

[18] [1991] VicRp 81; [1991] 2 V.R. 427 at 429 cited with approval in, inter alia, Humphries v. Poljak at 136