Berbers v Transport Accident Commission [2002] VSC 211

Berbers v Transport Accident Commission [2002] VSC 211 - VSC 2002 case summary — Zoe

[11]

"36. I consider on the material before me that the deterioration in the Applicant's condition since 1997 is attributable to the worsening of her depression, which has only recently commenced to be treated, and in respect of which there is some confidence of an improvement over time with treatment. In light of the fact that whole person impairment assessments are only properly undertaken in accordance with the Guides when the condition has stabilised after all necessary treatment, I consider it appropriate to reduce the psychiatric whole person impairment of the treating Psychiatrist, Dr Leitmanis, from 33% to 25%. I note that such a reduction is consistent with the decision of Strong J in Lovison v TAC [2001] VCAT 1917, where a 20% reduction in the overall impairment assessment was made in contemplation of the improvement in the condition of the Applicant once litigation had been finalised. 37. I make the following observations about the apportionment between primary and secondary aspects of the psychiatric impairment. 38. There is a complete absence of reporting of Post-Traumatic Stress Disorder symptoms to the treating general practitioners Dr Yeo and Dr Addis between 1995 and 1997. In October 1998, Dr Yeo diagnosed a depressive mood disorder and made no mention of Post-Traumatic Stress Disorder symptoms. Although there are two consultations in November 1998 and March 1999 in which the Applicant's mood disorder is discussed, there is still no note of any Post-Traumatic Stress Disorder symptoms being reported. However, there is a history taken by Dr Rose in 1997 of symptoms of Post-Traumatic Stress Disorder being present since the accident. Having regard to the observations outlined in these reasons in relation to the Applicant's presentation, and particularly in relation to the implications of her presentation in the various videos tendered by the Respondent, I have some reservations about the credibility of the accounts given by the Applicant in 1997 and beyond to Psychiatrists about the existence of the Post-Traumatic Stress Disorder symptoms from the time of the transport accident. However, on balance, I accept the expert consensus that there is a Post-Traumatic Stress Disorder arising from the transport accident. 39. I as indicated earlier [sic], the evidence warrants a conclusion that the deterioration in the Applicant's condition since 1997 is largely due to a worsening of her depressive symptoms, which went untreated until 2000. For this reason, I consider that the apportionment adopted by Dr Rose in 1998 properly reflects the balance between primary and secondary factors. Accordingly, I find that 60% of the Applicant's psychiatric whole person impairment, that is, 15% is primary and directly results from the transport accident in 1995."

[27]

"The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd.; Sherpa v. Anderson; Mulvena; Re Harrison's Shares Under a Settlement. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2), 'put a different complexion on the issue in dispute'. In Nakhla v. McCarthy Woodhouse, J said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court. An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published 'Reasons for Decision' in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held that in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, 'I do not accept [X] as an accurate witness'. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X's evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment." (footnotes omitted)

[41]

"As I have already indicated, the appeals authorised by s.102(3) are confined to appeals on a question (or questions) of law. The existence of a question of law is not only a precondition to the right to appeal but also the subject matter of the appeal itself, so that the appeal does not operate as a rehearing of the whole dispute or matter: Brown .v. Repatriation Commission [1985] FCA 194; (1985) 7 F.C.R. 302 at 305; Federal Commissioner of Taxation v. Brixius (1987) 16 F.C.R. 359 at 363-5; T.N.T. Skypak International (Aust) Pty. Ltd. v. Federal Commissioner of Taxation [1988] FCA 119; (1988) 19 A.T.R. 1067 at 1070; and Inglese v. Estate Agents Board (unreported, Murphy J., 31 August 1989). Although one can, I think, discern some variation in the approach taken over the last two decades by Australian courts having jurisdiction to hear appeals on questions of law to whether a particular error is one of law or one of fact (possibly for reasons referred to by Gummow J. in T.N.T. Skypak), those courts have on the whole set their face against allowing questions of fact to be dressed up as questions of law, and have thus rejected appeals on such questions as whether a particular decision was against the evidence and the weight of evidence: Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (N.S.W.) (No.2) [1980] FCA 96; (1980) 47 F.L.R. 131; Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 F.L.R. 407; Spano v. Estate Agents Board (unreported, Full Court, 4 December 1986); and Transport Accident Commission v. Hoffman [1989] VicRp 18; (1989) V.R. 197 at 199 per Young C.J. and McGarvie J. It is, however, authoritatively established that the question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can (as opposed to whether it should) be drawn from the facts found: Australian Gas Light Company v. Valuer-General (1940) 40 S.R. (N.S.W.) 126 at 138 per Jordan C.J.; Transport Accident Commission v. Hoffman at 199; and Bond at 355-6 per Mason C.J., with whom Brennan J. at 365, Deane J. at 369 and Toohey and Gaudron JJ. at 387 agreed. It is true that the agreement of Deane J. was expressed to be subject to the preceding statements in his Honour's judgment, but those statements, to which I shall come in more detail later, do not contradict what the Chief Justice said but rather were directed to extending the kinds of questions relating to factual conclusions that could be entertained on judicial review. (Savage v. Crimes Compensation Tribunal [1990] VicRp 9; [1990] V.R. 96 at 99 deals, I consider, with a different aspect of the concept of a question of law, namely, the proposition re-enunciated in Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 C.L.R. 1 at 8-9, that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law). In a passage in Bond at 356 to which I shall also return later, Mason C.J. said: 'So long as there is some basis for an inference - in other words, the particular inference is reasonably open - no ... error of law has taken place.' To my mind, the corollary of that proposition is that where there is no basis for an inference - in other words, the particular inference is not reasonably open - error of law has taken place. The appellant submitted that an appeal which alleges that a decision was not reasonably open on the evidence is an appeal on a question of law. That submission derives support from statements in the decision of the Full Court of this court in City of St. Kilda v. Perplat Investments Pty Ltd. (1990) 4 A.A.T.R. 358 at 360 and 361 per Young C.J., 363 and 365-6 per Crockett J. and 370-1 per Southwell J. It may be that some of those statements merely repeat or embody submissions of counsel for the appellant in that case. But not all the statements are, in my view, of that kind. In particular, the statements at 360 and 371 seem to me to be affirmative statements that if a conclusion was not reasonably open on the evidence it is erroneous in law."[8]

[43]

"For the foregoing reason, I think that I should proceed on the basis that a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts. But, as the statement of Mason C.J. at 360 shows, there is virtually no difference between the tests. Now, it is significant for present purposes that in Bond at 356 Mason C.J. (with whom on this point Brennan, Toohey and Gaudron JJ. agreed) stated: 'But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v. Commonwealth [1987] HCA 25; (1987) 163 C.L.R. 54, at 77, per Brennan J. Similarly, Menzies J. observed in R. v. District Court; Ex parte White [1966] HCA 69; (1966) 116 C.L.R. 644, at 654. 'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.' Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' For the reasons I have given, I consider that I should take that passage as stating the law which I must apply. The ascription of value to a parcel of land or a chattel is, or at least will frequently involve, an inference of a fact. Accordingly, a want of logic in drawing that inference will not by itself constitute error of law. But it may, I consider, sound a warning note and put one on enquiry whether there was indeed any basis for the inference."

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