Cowden v Transport Accident Commission & Anor [2003] VSCA 198

5. On this occasion, as is usual in such cases, the parties did not advert to the possibility that leave to appeal was needed and, although Callaway, J.A. expresses the view that the question whether leave is needed should be decided when a suitable case arises, I am not so clear that that will work any saving of time or expense to the parties. The materials on which leave will be sought (if leave is needed) and the materials on which the appeal proceeds (if leave is given) will be much the same; the decision below is final in effect, which is relevant to the grant of leave; and often, I suspect, the task of deciding leave will fall little short of that of deciding the appeal. In those circumstances, to require a separate application to be made for leave to appeal will ordinarily add to the expense involved, rather than reduce it; it will require the attention of another court; and in the end may result only in the application for leave to appeal being put over to the court entertaining the appeal. The present practice, as I apprehend it, of granting leave if leave be needed is an expedient which, subject to argument, seems to me apt.

8. None the less, I am conscious of the fact that if leave to appeal is necessary it is the product of the legislation and it is, of course, incumbent upon us to do as Parliament requires. If, in a suitable case, it were to be decided that leave to appeal is needed when an application for leave to proceed on the ground of "serious injury" is dismissed in the County Court, it may nevertheless be desirable for this Court to put in place some system whereby the question of leave is raised for separate determination only in a very clear case, leaving it appropriate in other cases for the application for leave to appeal to be brought on for hearing with the appeal if leave be given (as indeed is the common practice in the case of appeals against conviction). In this instance I am content to grant leave to appeal if leave is required.

13. I agree with Buchanan, J.A. There is only one point I wish to add.

16. Where the County Court grants leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986, the order granting leave is interlocutory and an appeal does not lie to the Court of Appeal except with the leave of this Court.[1] It is arguable that, even where the County Court refuses leave to bring proceedings, the order is interlocutory and leave to appeal is required. Some of the arguments were explored with counsel at the outset of this appeal. We determined not to decide the point but to grant leave if leave be needed. That course has often been followed and, on some occasions, the point has simply been overlooked. In my opinion, it should be decided when a suitable case arises. If an order refusing leave is interlocutory, a practice can then be devised whereby plainly unmeritorious applications for leave to appeal are refused at an early stage, with a consequent saving of time and expense to the parties.[2] A defendant with a good case is as much entitled to finality as a plaintiff with a good case is entitled to relief.

21. On 14 May 1995, the appellant was seated in the back of a utility being driven through the streets of Bright. The utility crashed into a tree, but proceeded on and hit a second tree. As a result of the collisions the appellant suffered a fracture of her right upper arm, bruising, laceration to her forehead, a black eye, chipped teeth and a whiplash to her neck. She was admitted to hospital and discharged 13 days later.

24. The laceration to the appellant's forehead was sutured. She underwent open reduction and internal fixation of her right humerus. After the bone set, the appellant received physiotherapy for her right arm and shoulder. A year after the accident the appellant received chiropractic treatment for her neck, as well as

ultrasound massage and acupuncture. The appellant has taken analgesics and anti-inflammatory medication for the pain in her neck. She also underwent a diagnostic block of the facet joints on the left-hand side of the C2-C5 levels and radio frequency facet joints denervation, which reportedly gave her short-term relief.

28. The appellant left school at 17 years of age and spent 12 months working with the Spastic Society of Victoria. At the time of the accident, when she was 19 years old, she was unemployed. Some six months after the accident the appellant obtained employment picking raspberries for three months. Thereafter she regularly travelled overseas. She worked as a ski instructor in Canada, during the ski seasons in 1996, 1997 and 1998, returning to Australia in the off seasons to work as a ski instructor and a sales assistant. In 1999, the appellant worked as a ski instructor and travelled in the United States of America. After the accident, the appellant qualified as a ski instructor and reached instructor level 3, which involved teaching intermediate skiers. She returned to Victoria in 2000 and worked in a café in Bright as a waitress for eight months and then worked as a house-cleaner at Hamilton Island. When the application was heard the appellant was employed as a clerk at the Bright Information Centre.

31. Section 93 of the Transport Accident Act 1986 provides that a person shall not recover any damages in proceedings in respect of injury as a result of a transport accident except in accordance with the section. A person who is injured as a result of a transport accident can only recover damages in respect of the injury if the Transport Accident Commission ("the Commission") determines the degree of impairment of the injured person and the injury is a "serious injury". If the Commission determines that the degree of impairment is 30 per centum or more, the injury is deemed to be a serious injury. If the Commission determines the degree of impairment is less than 30 per centum, the injured person may not bring proceedings to recover damages unless the Commission is satisfied that the injury is a serious injury and issues a certificate to that effect or a court gives leave to bring proceedings. In this case, the Commission determined that the degree of impairment of the appellant was less than 30 per centum and was not satisfied that the injury was a serious injury. Accordingly, the appellant applied to the Court for leave to bring proceedings. Section 93(6) provides that a court must not give leave unless it is satisfied that the injury is a serious injury. The term "serious injury" is defined in s.93(17) to mean, inter alia:

"(a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement ..."

The appellant contended that her injuries met the requirements of these paragraphs.

36. The appellant gave evidence by affidavit and was cross-examined. The only other evidence consisted of reports by medical practitioners engaged by the appellant and the Commission.

39. The County Court judge who heard the application concluded that the injuries sustained by the appellant did not involve serious long-term impairment or loss of a body function or permanent, serious disfigurement and thus did not amount to "serious injury" within the meaning of s.93(17) of the Act. Her Honour dealt in turn with the effect of the injuries upon the appellant's ability to earn income, her recreational activities and her appearance. She said that the appellant was now earning more than she had earned in the years immediately following the accident and was satisfied that she was not suffering any pecuniary loss as a consequence of her injuries. Her Honour accepted that the appellant continued to suffer pain and restriction of movement and her recreational activities were curtailed. Nonetheless, her Honour said that she was not persuaded that the ongoing symptoms suffered by the appellant so interfered with her enjoyment of life as to warrant characterizing them as amounting to a "serious injury". The trial judge, having observed the appellant, said that the scars were "well healed" and when compared with other cases of possible disfigurement could not be described as "very considerable". Accordingly, her Honour refused the application.

42. The appellant has appealed against the refusal of her application. In order to succeed the appellant must demonstrate that the trial judge made a specific error or that the determination was plainly wrong or wholly erroneous.[3]

"(a) The decision of the learned trial judge contained a `specific error'.

PARTICULARS

Having found that the injury to the neck led to `permanent consequences' for the Plaintiff, the learned trial judge failed to properly consider whether such permanent consequences were a serious long term impairment or loss of a body function for the Plaintiff in terms of: (i) pecuniary disadvantage with respect to disablement from work as a ski instructor; or (ii) interference with enjoyment of life because of disability with respect to skiing and other activities. (b) The decision of the learned trial judge was unsustainable."

49. Counsel for the appellant contended that the judge at first instance erred in failing to take into account the income the appellant could have earned if she had been able to continue her career as a ski instructor. In finding that the appellant "is currently earning more than she did in the years immediately following the accident", her Honour, it was said, confused loss of earnings with loss of earning capacity.

52. The appellant in evidence said that she earned $22 an hour as a ski instructor in Canada. As a clerk at the Bright Information Centre she earned $14 an hour. Unfortunately, that was the extent of the evidence of loss of earnings. The appellant gave no evidence as to the number of hours for which she worked as a ski instructor in Canada. She produced no documents disclosing her income save tax returns that related to the income she earned as a ski instructor in Australia in the years which ended on 30 June 1999 and 2000 and an estimate of her taxable income earned in Australia for the year which ended on 30 June 1998. If the appellant did lose the capacity to earn income from ski instructing, the trial judge had no material from which she could determine the value, if any, of the lost opportunity.

55. The appellant deposed in her affidavit that the effects of the injury to her neck and low back forced her to cease work as a ski instructor. In her oral testimony the appellant said that the problem that prevented her continuing with ski instructing was "my neck injury mainly because the movement would go and I wouldn't be able to move .... The pain that was associated with that was the main thing ... The pain got worse and worse as I went on until the last season where I was in the States ..." On the other hand, Dr. Brooder, a neurologist, reported that on 15 June 1999 the appellant told him that she:

"... had continued with her previous employment as a seasonal ski instructor. She had felt that there had not been any overall aggravation to her symptoms when working as a ski instructor. It was her intention to pursue further employment as a receptionist."

"Approximately seven months following the motor vehicle accident Ms Cowden had been able to return to her previous seasonal employment as a ski instructor. Despite her continuing symptoms she had then been able to continue casual employment as a ski instructor working either locally during the winter season or travelling to the northern hemisphere during the northern winter. She was not aware that her work as a ski instructor resulted in any significant aggravation to her symptoms."

Dr. Brooder saw the appellant again on 4 July 2001 and reported:

"At the time of reassessment of Ms Cowden on 4 July 2001 a further period of more than two years had elapsed since the time of her initial assessment. She had felt that over that period of time her symptoms had continued essentially unchanged."

The appellant envisaged no long term career as a ski instructor judging from this exchange in the course of her cross-examination:

"I gather it wasn't always your intention to remain a ski instructor for your working life; is that so? --- It is not something that people do for a working life, no. There is a short life span in it because of the fickle nature of the snow and the travel and all that sort of thing. You don't last a long time in ski instructing, do you? --- Most people wish to get married and have a family. That would be your intention? --- Yes, definitely."

In the light of this evidence I do not consider that the trial judge erred in concluding that "I am satisfied that she is not presently suffering any pecuniary loss by virtue of her ongoing symptoms."

66. The "serious long-term impairment" referred to in s.93(17) embraces interference with enjoyment of life as well as disablement from work.[4] On this subject the trial judge said:

"I accept that she continues to suffer from pain and restriction of movement and that her recreational activities had to change, and thus, to take one example, she can no longer engage in horse riding."

Counsel for the appellant criticised her Honour for failing to refer to the impact of the appellant's injuries on skiing as a recreational activity. Earlier in her judgment, however, the trial judge had said:

"The plaintiff can still ski, although she is not as proficient as she used to be, and she had to give up horse riding that was described as her passion in life."

In the impugned passage in her judgment the trial judge gave horse riding as an example of the change in the appellant's recreational activities wrought by her injuries, but her Honour was alive to the effect of the injuries on the appellant's ability to pursue skiing as a sport.

73. It is difficult for an appellant to demonstrate that a trial judge's evaluation of the existence of a "serious injury" should be set aside. In the absence of specific error, it must be shown that the decision at first instance was "plainly wrong" or "wholly erroneous"[5] or "patently unsustainable"[6]. Hence the appellant's attempt to demonstrate that the trial judge fell into specific error in failing to accord due weight to the effect of the appellant's injuries upon her ability to ski. I consider that there was sufficient evidence to justify the conclusions reached by the trial judge, who, it should be remembered, had the advantage of seeing and hearing the appellant give evidence.

76. The question whether this is an appeal from a judgment or order in an interlocutory application is a difficult one. If leave is required pursuant to the provisions of s.74(2D) of the County Court Act 1958, I would grant leave and dismiss the appeal.

I certify that the preceding 7 pages are a true copy of the reasons for judgment of Phillips, Callaway and Buchanan, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 10 December 2003.

[1] County Court Act 1958, s.74(2D).

[2] See, for example, the system proposed by Phillips, J.A. at [3].

[3] See Mobilio v. Balliotis [1998] 3 V.R. 833.

[4] Ninkovic v. Pajvancek [1991] VicRp 81; [1991] 2 V.R. 427 at 429 per Marks, J.

[5] Mobilio v. Balliotis, above; Nichols v. Robinson [2001] VSCA 11; (2001) 33 MVR 83 at 86 per Winneke, P.

[6] Giannakopoulos v. Melwire Pty. Ltd. [2000] VSCA 153 at [7] per Tadgell, J.A.