Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187

1 I will invite Eames, J.A. to deliver the first judgment.

2 This is an appeal against a decision of a judge of the County Court who, upon hearing an application under s.134AB of the Accident Compensation Act 1985, refused leave to the plaintiff/appellant to issue common law proceedings with respect to a workplace injury to his right upper limb suffered on 27 March 2000.

3 The plaintiff made his application for leave under two headings. First, under sub-s.134AB(37)(a) of the Act, submitting that he had suffered a permanent serious impairment of the function of his right upper limb; and, alternatively, under sub-s.37(b) of the Act, contending that he had suffered permanent serious disfigurement of his right upper limb. The plaintiff's application was limited to pain and suffering consequences flowing from the injury. The defendant submitted that the impairment resulting from the plaintiff's injury to his right upper limb did not satisfy the definition of serious injury under either head of claim.

4 As to the facts concerning the happening of the injury and the medical treatment of the appellant, I will adopt paragraphs 9 to 15 of the summary which has been filed in this case, which is a very helpful and thorough document:

"9. The plaintiff was born in February 1964. At the date of the hearing of his application for serious injury he was 41 years of age.

10. He was employed by the defendant as a Driver. His job required him to operate a semitrailer which had a crane fixed to it. On 27 March 2000 he drove the semitrailer to a point where it was to be used in the task of unloading. The boom of the crane unfolded in three sections, with each section being unfolded one at a time. As the plaintiff was engaged in this task a catch/latch holding the three sections of the boom together failed causing the entire boom to fall on to his right arm.

11. The plaintiff suffered an extensive and at least initially a severe wound to his right forearm. He was taken to the Geelong Hospital. He had a large wound over the extensor surface of his

right forearm. An x-ray revealed an oblique compound fracture through the right forearm extending down in a spiral to the right radius. It also revealed that his radio-ulnar joint was disrupted or subluxed.

12. The plaintiff was treated by Mr Bainbridge, Orthopaedic Surgeon who reduced the fractures and undertook a fasciotomy to relieve a compartment syndrome. An incision was made through the fascia to divide the musculature of the right forearm. The surgical incision was left open until late April 2000 when Mr Bainbridge undertook further surgery to close the fasciotomy.

13. The plaintiff was reviewed by Mr Bainbridge on a number of occasions following the initial surgery. Mr Bainbridge removed the pin which he had inserted to reduce the fractures to the plaintiff's right forearm on 4 May 2000.

14. The plaintiff was also treated by Dr Magarey, General Practitioner who prescribed him endone for pain relief, and in about July 2000 he was referred to a Physiotherapist for hand therapy and general therapy for his right upper limb.

15. The plaintiff said that he had not had any medical treatment in the four years prior to the application. He said he had been told by Mr Bainbridge to return for treatment if he had any further trouble, but that when he had done so in the past he had been told there was nothing further he could do for him."

5 The plaintiff filed two affidavits and was cross-examined before the judge. In addition, he tendered medical reports from Mr David Bainbridge, an orthopaedic surgeon, from his general practitioner Dr Magarey, from another general practitioner, Dr MacLean, and also from plastic surgeon Mr Ham, who had examined him on behalf of the defendant, as had orthopaedic surgeons Mr Henderson and Mr Davie. A report was also tendered from orthopaedic specialist Mr Huffam. The plaintiff also tendered photographs of his arm which were taken in 2000 when he was an in-patient undergoing treatment for his injury. The defendant tendered video film of the worker taken over three days and also medical reports from general surgeon Mr Battlay.

6 Her Honour found the appellant to be a straightforward witness who did not seek to embellish or exaggerate his condition or the impact on him of his impairment or disfigurement.

The claim based on impairment

7 I will turn to the grounds of appeal. As to the rejection of the contention that the injury to the right upper limb was a serious injury, the primary complaint raised by the grounds of appeal was that, having regard to the findings made by her Honour, it was not open to her to conclude by reference to s.134AB(38)(b) that the consequences of the impairment or loss of body function was not at least very considerable, and thus that it did not constitute serious injury. Her Honour made a series of findings of fact concerning this aspect of the application. Those appear in her Honour's judgment at paragraph [16] (the emphasis appears in the original):

"16. The plaintiff is 41 years of age. In this application, it is not necessary to dwell on the detail of the plaintiff's employment from the time he completed Year 11 and started work in his father's milk bar. As I have already noted, the plaintiff gave up the heavier manual type of work he was performing prior to the accident and has since successfully started his own business, where he works as an earthmoving contractor and manages to use the heavy equipment involved in this business at the same time as accommodating the ongoing impairment of his right arm. However, notwithstanding his success in establishing his own business, the plaintiff describes the following consequences, which he asserts are serious to him:

• Both in his business and in his domestic environment, pain prevents him from digging holes which require twisting and powerful movement of the right arm. However, the plaintiff agrees that from time to time when he has to, he can shovel out dirt at a worksite for a couple of minutes.

• He is unable to fully extend the elbow of his right arm or, with the arm extended as much as he can, turn his palm fully up or down. These restrictions were demonstrated in Court and are consistent with the medical evidence confirming a fixed flexion deformity of his right elbow and a loss of supination and pronation in the forearm. The most recent medical opinion is that obtained from Mr Huffam, an examining orthopaedic surgeon who measured the plaintiff's movements in September this year, noting that the plaintiff '... had moderate limitation of movement of the elbow joint with 40 degree loss of flexion and then flexion to 120 degrees. Twisting movements of the forearm, pronation and supination were limited to 40o pronation and 40o supination, that is about half the normal range of movement. These movements were measured with a goniometer. He had a moderate limitation of movement of the right wrist. Dorsiflexion 40o. Palmar flexion 60o. Radial deviation 15o. Ulna deviation 30o. He had a full range of movement of the finger joints. It was noted that the skin of the right hand was quite solid and thickened, indicating that he is using his hand for manual work. Muscle power of flexion and extension of the elbow, pronation and supination of the forearm and flexion and extension of the wrist and fingers all appear to be undiminished. ... Mr Dwyer has made quite a good, although not complete recovery from his injury'.

• In Court, the plaintiff demonstrated that he is unable to draw his right forearm back up against his bicep to the same extent as he can with his left forearm. The difference is apparent and, according to the plaintiff, it causes him pain to try and push the right forearm further.

• There is a loss of strength and muscle wastage in the plaintiff's right arm. The most recent measurement of the plaintiff's grip strength was undertaken by Mr Henderson in mid 2003, confirming a significant loss of strength in the plaintiff's right hand. So far as muscle wasting is concerned, this provides objective proof of damage and under-use of the dominant right limb, and in September this year Mr Huffam noted: 'There was some relative wasting of the right arm compared to the left. Circumferences of the right upper arm 35cm, left 36.5cm. Right forearm 30cm, left 32cm'.

• There is numbness on either side of both scars. Mr Huffam, in his report, refers to 'an area of diminished sensation posterior to the scar over the extensor compartment of the arm'. However, Mr Henderson, in his earlier report, refers to '... a large elongated triangular area of sensory deficit of the posterior anti-brachial cutaneous nerve branch of the radial nerve. This area extends posteriorly for some 5cm from the scar, below the 10cm-15cm junction; and about 4cm proximal above this site of change of direction of the scar'.

• Since the accident, the pain and discomfort experienced in his right arm has caused him to give up activities such as motorbike riding at weekends and playing social games of golf as he previously did a dozen or more times a year. Although the plaintiff has ridden a pushbike 'on the odd occasion' since the accident, he says he is now unable to undertake this activity with his partner and her children without pain. He also finds activities such as personal toileting and reaching with his arm extended to a position behind him awkward and painful. Generally speaking, all of the medical evidence, particularly the most recent medical opinion, supports the plaintiff's complaints concerning the level of restriction the impairment of his right arm imposes on his social, recreational and domestic activities.

• The plaintiff describes the frequency and level of pain in his right arm in his most recent affidavit by saying: 'I continue to have daily pain in my right arm. I wake in the morning with an aching pain in the arm which lasts for approximately 1 hour. By the time I get to work I am generally pain free. However the pain tends to recur in the day due to the physical nature of the work I do. I am right handed and have always favoured the use of my right arm. Activities such as lifting ramps from the bobcat, driving the truck and digging cause an aggravation of my right arm pain. By the end of most working days I experience an aching in my right arm. Additionally I experience short intermittent periods of sharp pain in my right elbow on most days. ... I no longer see any treating doctors or take any medication for my right arm. The doctors have told me that there is nothing more they can do for me'.

• There is a risk of the development of osteoarthritis in the right elbow. Both the hospital report and Mr Davie, in his report in 2004, allude to this possibility.

• The impairment of the plaintiff's right arm precludes him from performing the heavy manual type of work he was doing prior to the accident. The medical evidence supports this view, but also points to the fact that the plaintiff has been able to return to full-time and active employment as an earthmoving contractor. The long segment of video film showing the plaintiff working at various construction sites in October last year confirms that, notwithstanding the restrictions imposed by the permanent impairment of his dominant arm, the plaintiff appears to function well and to use his right arm effectively."

No specific error is identified in her Honour's decision. Rather, Mr Kennan submitted that her Honour's findings necessarily should have led to the conclusion that the applicant's impairment or loss of function enabled him to pass through the statutory gateway.

8 It is appropriate, first, to consider the nature of the appeal. This Court is, of course, required by s.134AD to "decide for itself whether the injury is a serious injury on the evidence and the other material before the judge who heard the application". As the Court acknowledged in Barwon Spinners Pty Ltd v. Podolak[1], this statutory provision abolished, in the appeals to which it applies, the rule adopted in Mobilio v. Balliotis[2] that, in the absence of specific error, a decision under appeal would be set aside only if it was plainly wrong or wholly erroneous. However, the Court in Podolak went on to state a number of important propositions applicable to the discharge of this Court's obligation under s.134AD to "decide for itself". They are as follows:

(1) It is for the appellant to persuade the Court that the decision produced below was the wrong one and should be reversed, or at least set aside.

(2) If a finding of fact is attacked, it is for the appellant as the attacker to carry the burden of persuasion, and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and where credit was in issue.

(3) The appeal court must recognise and give appropriate weight to the advantages of the trial judge, who has seen and heard the witnesses. Those advantages are particularly important in cases arising out of the gateway of "serious injury" in the Accident Compensation Act. In Podolak,[3] the Court, following Abalos v. Australian Postal Commission,[4] acknowledged that the obligation of the appeal court to give appropriate weight to the advantages of the trial judge included making allowance for the fact that the judge might have had an in-court demonstration.

(4) The statutory criteria for determining when an injury is "serious" required - under s.134AB(38)(b) - and as relevant to the present case, that the question be determined by reference to the consequences to the worker of any impairment or loss of a body function or disfigurement "when judged in comparison with other cases in the range of possible impairments or losses of a body function or disfigurements ...". Furthermore, by s.134AB(38)(c), the impairment or loss of a body function or disfigurement shall not be held to be serious unless the pain and suffering or loss of income consequences are, when so judged by comparison with other cases:

"fairly described as being more than significant and marked and as being at least very considerable".

(5) Application of the criteria does not depend on any legal principle, but rather on the opinion of a judge familiar with a range of conditions within which the particular condition occurs. Elements of fact, degree and value judgment are involved.

(6) Some County Court judges are dealing with cases almost daily and have become expert in the area. They see the worst and the least of like cases and are in the best position to assess a given case within the spectrum of such cases. That is an advantage which can be highly significant and it is one not ordinarily enjoyed by the appellate court. It is one to which an appellate court should have regard, giving it such weight as it deems appropriate.[5] I add the observation that this is, in effect, an appeal from a specialist tribunal.

9 These remarks are in my opinion apposite to the present case, save that the appellant's credit was not in issue. The trial judge had advantages of the kind mentioned which this Court simply does not enjoy. In particular, not only did the judge have the benefit of substantial in-court demonstrations by the appellant of the extent of his disability, the judge also viewed video film that had been covertly taken of the appellant by the respondent's agents. The members of this Court had only a very limited opportunity to observe the restrictions of movement claimed by the appellant.

10 As the Court pointed out in Podolak,[6] the identification of specific error is not a necessary prerequisite for a successful appeal. Nonetheless the Court must be persuaded that the judge was wrong in his or her decision. The nature of the appeal is not such that the role of the Court of Appeal is merely to allow a second attempt by an unsuccessful party to obtain the desired result by placing the same material before a differently constituted tribunal of fact.

11 In the decision of the Court of Appeal in Shock Records Pty Ltd & Anor v. Jones,[7] Bell, A.J.A., with whom Callaway and Ashley, JJ.A. agreed, said this:

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

12 By virtue of s.134AD, the assessment of serious injury is made by the Court of Appeal as at the time of the hearing before the County Court judge.

13 Mr Kennan did not contend that her Honour failed to identify the relevant facts which bore upon the outcome of the application. His complaint was that her Honour failed to give sufficient weight to the facts as she found them to be. Had she done so, he submitted, her Honour must have come to a different conclusion. The contention that the facts as found by her Honour must have led to the application succeeding does not allow of much elaboration. It is not unlike a contention that an award of damages in a civil case, or a sentence in a criminal appeal, is manifestly excessive or inadequate. To re-state it in terms of the relevant provisions, the question becomes: has the appellant satisfied me that, when judged in comparison with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequence here must have been regarded by a judge who has experience of making such comparisons as being more than significant or marked, and as being at least very considerable?

14 As counsel for the respondent pointed out, the appellant had not received treatment for some four years and his treating surgeon, Mr Bainbridge, reported in May 2002 that the appellant's fracture had united and that he had been left with some elbow stiffness "but a remarkably good result overall". At the time of the hearing in the County Court the appellant was conducting his own business, operating a bobcat and excavator, and was doing very well. Whilst her Honour accepted the appellant's evidence that he experienced pain most days and that the restriction in movement of his arm impacted on social, recreational and domestic activities, the severity of those restrictions was a matter which the judge was called upon to evaluate, and to do so by reference to other cases which concerned impairment or loss of function of a dominant upper limb.

15 I am unpersuaded that the facts as found must have led to the conclusion that the judge in conducting that evaluation must have concluded that the pain and suffering consequence, when judged by comparison with other cases in the range of possible impairments or losses of body function, was, at least, very considerable. I do not consider that the complaint under grounds 1 and 3, therefore, is made out.

Adequacy of reasons

16 A discrete ground of appeal concerning the impairment or loss of function aspect of the application complained that the reasons for judgment were so inadequate as to fail to demonstrate the process of reasoning which led to her Honour's conclusion. In Hunter v. TAC and Avalanche,[8] Nettle, J.A. held that it is not enough that a judge set out the evidence on which his or her findings are based and then merely state a conclusion as to whether "serious injury" had been established. The requirement, his Honour held, is to analyse the evidence and to state why some parts of it are accepted and some rejected. But in the present case there was not any relevant factual dispute. Nor was this a case where the judge failed to set out her findings as to the consequences, which was the failure in the reasons identified in Richards v. Transport Accident Commission.[9]

17 As Winneke, P. held in Nichols v. Robinson,[10] the assessment whether an injury is serious is the daily task of County Court judges and involves the making of a value judgment when one case is compared to others in the judge's experience. The President observed:

"Like an assessment of non-pecuniary loss in a personal injury case, it is not a value judgment which needs now to be attended by statements of principle, nor does it readily admit of explicit reasoning."

18 Section 134AE provides that the reasons shall not be summary but be detailed reasons which are as extensive and complete as the court would give on the trial of the action. In this case, having set out all of the facts on which the comparison with other cases and the assessment as to whether the injury was serious fell to be made, the value judgment, which did not require determination of any disputed issues of fact, could be stated simply and economically. The facts either persuaded the judge that the impairment and loss consequences rendered it a "serious injury" or they did not. Here, they did not, and the appeal court can readily determine whether that assessment was right, by considering the factual matters set out by the judge. In the context of this case, the evaluation of those matters, in my view, did not require separate consideration.

19 Mr Kennan told the Court that the appellant could not understand from the reasons why he lost the case. That is unfortunate, but it does not mean that the reasons were deficient as a matter of law. The appellant undoubtedly suffered an unpleasant injury which has affected his life and restricted the movement of his arm. Her Honour was not denying that, but she was obliged to try to place the injury within a scale that ran from a trivial injury to the total loss of the limb. Within that range was a point where an injury became very considerable, and the legislation obliged her Honour to make a conscientious determination whether this injury, as unfortunate as it was, crossed that line. Whilst more might have been said by her Honour, in my view the reasons which her Honour gave complied with s.134AE of the Act.

Claim based on disfigurement

20 Her Honour accepted the appellant's evidence that he was embarrassed and distressed by what he regarded as the ugliness and deformity of the scarring on his arm and as to the impact that had on his social life. He said that people often commented on it, and in her reasons her Honour found the extent of the disfigurement to be as follows:

"29. There is one report from a plastic surgeon, Mr Ham, who examined the plaintiff at the request of the insurer in March last year. Relevantly, his examination revealed permanent disfigurement from '... a curved scar over the posterior and lateral aspects of the right forearm. It is 26 centimetres in length and there are suture marks visible in the upper third with some vascularity of the scar. The scar is stretched up to 1.2 cm in width'. So far as the interior aspect of the plaintiff's right forearm is concerned, Mr Ham describes what he calls the 'Volar Scar' as '... a 19 cm scar, which is up to 1 cm in width in the upper 3 cm with some tightness. There is no hypertrophy of the scar'.

...

33. As the medical evidence and any visual inspection of the plaintiff's arm reveals, there is disfigurement through scarring and visible deformity of the right upper limb caused by the plaintiff's inability to fully straighten the elbow and the loss of condition and wasting of the upper and lower parts of the limb.

34. Accordingly, in this case there is permanent disfigurement of the plaintiff's right upper limb by reason of:

• Two long and deep scars located on the plaintiff's right forearm. They are not raised and they appear well healed, although there is 'rutting' on the surface. Their colour is consistent with the rest of the plaintiff's lightly tanned forearm. The scars are obvious and unsightly because of their length, their width and their location on a part of the body regularly exposed.

• The deformity of the appearance of the right upper limb caused by a combination of the fixed elbow position and the comparative wasting, flabbiness and loss of tone in the limb."

21 Her Honour had regard to the appellant's subjective assessment of the consequences to him of the scarring. In her judgment at paragraph [37] her Honour concluded:

"37. Accordingly, in a 41-year-old male who in the past prided himself in his appearance, pain and suffering consequences include the fact that the plaintiff has a permanent and unsightly disfigurement, the plaintiff's embarrassment and distress and his tendency to cover up the disfigured limb because the disfigurement occurs in an exposed and prominent position. These are relevant consequences in determining, as I have in this case, that the disfigurement is substantial. However, when judged by comparison with other cases in the range of possible disfigurements, I am unable to go so far as to fairly describe it as being at least very considerable."

22 Once again, the complaint raised in the grounds of appeal is that the findings made by her Honour must have led to the conclusion that the appellant had a serious disfigurement within the meaning of s.134AB(37)(b).

23 In concluding her analysis, the judge distinguished between, on the one hand, the disfigurement being substantial, as she held it was, and, on the other hand, whether, when compared with other cases in the range of possible disfigurements, the pain and suffering consequences were, at least, very considerable.

24 The assessment of the severity of a disfigurement necessarily involves a value judgment. We had before us photographs taken many years before the hearing of the application. Her Honour's conclusion was based on her own inspection of the scarring and relating that to the evidence of the appellant, including the videotaped evidence, as to his daily work and social activities. The members of this Court had the opportunity to examine the appellant's arm. It is indeed an unpleasant injury but it is markedly less so than at the time of the tendered photographs, and I am not persuaded that her Honour was wrong to conclude that it did not pass the threshold to become a serious disfigurement, within the terms of the Act.

The opinion of Mr Ham

25 One further discrete ground of appeal which was dealt with in the written submissions but was not further dealt with in oral submissions was ground 6, relating to the report of Mr Ham. That ground complained that her Honour misunderstood or misused the statement made in the report of Mr Ham, thereby failing to give his evidence proper weight. He expressed the opinion, which appeared in his report:

"The patient obviously considers the scarring as a significant disfigurement which he needs to cover by wearing long-sleeved shirts. I would agree that there is some disfigurement due to the scarring, and using Table 2, page 280 of the AMI guides, I would consider this worker's impairment due to disfigurement lies in the lower range of Class 1. In my opinion the disfigurement is of three percent whole person impairment. I consider the impairment will be permanent. The scarring has not produced any total loss or total loss of use in this worker."

"The plastic surgeon's observations that there is some disfigurement due to the scarring appears to be a response to the plaintiff's comment to him that the scarring on his right arm is a significant disfigurement."

26 In his written submissions counsel submitted that her Honour thereby discounted Mr Ham's opinion and that "there is nothing in the opinion to suggest that Mr Ham did not independently and genuinely hold the opinion that he expressed, namely, that there was some permanent disfigurement".

27 I do not think that what her Honour said amounted to a rejection of the actual

opinion of Mr Ham, namely, that the appellant suffered "some disfigurement". He did not say it was "significant disfigurement". I do not consider that this ground is made out.

Reasons concerning disfigurement claim

28 Finally, I deal with ground 7, as to the reasons concerning disfigurement. Complaint was again made about her Honour's reasons for rejecting the application, as it concerned disfigurement.

29 I adopt what I earlier said as to the requirement for reasons in this case. What is required by way of a statement of reasons for rejecting the contention that a disfigurement is "serious" must necessarily be constrained by the fact that it is so clearly a value judgment that permits little elaboration.

30 I can well understand that the disfigurement is distressing to the appellant, and the judge also appreciated that; her judgment contained many sympathetic statements as to the appellant's injury. The difficulty confronting the judge and this Court is that the legislation required the judge to make a value judgment which required comparison with other possible disfigurements in what must be a very wide range of misfortune, and no doubt in all instances the disfigurement would have been distressing to the person suffering the condition. Whilst again more might have been said by her Honour, I am not persuaded that what was said was not in law sufficient to meet the statutory requirement for reasons to be given. Thus, the reasons given with respect to this aspect of the application were in my opinion adequate and this ground fails.

31 I would therefore dismiss the appeal.

32 I agree and, subject to what follows, I do so for the reasons which his Honour has given. His Honour has dealt with the argument as articulated by counsel for the

appellant, which was that on the facts as found by her Honour, there was only one conclusion reasonably open, namely that the serious injury criteria were satisfied. I agree with his Honour that the submission fails. So formulated, however, the submission overstates what is required to be established by an appellant. It is not necessary for an appellant in an appeal such as this to demonstrate that no other conclusion was reasonably open than the one for which the appellant contends. This is an appeal by way of rehearing.[11] It is not judicial review, and the appellant does not have to make out unreasonableness in the Wednesbury[12] sense.

33 Equally, I would not accept a submission on behalf of a respondent that the appellant had to demonstrate that the trial judge's finding was not open on the evidence. That is but the converse of the "no other view reasonably open" argument, to which I have already referred. This Court is re-hearing the matter, as on any appeal. We are deciding for ourselves, as on any appeal, but subject to the principles governing such an appeal which Barwon Spinners so clearly spelt out.

34 As Eames, J.A. pointed out in argument and as is clear from the propositions from Barwon Spinners which are set out in his judgment, we must be satisfied that the trial judge was wrong in coming to the conclusion she did. Like his Honour, I am not persuaded that her Honour was wrong. I am fortified in that conclusion by the opportunity that was afforded to us to inspect the scarring for ourselves, and to observe the extent of impairment of function of the arm. Nothing in that inspection altered my appreciation of the significance of the disfigurement, and the impairment, from the appellant's point of view. But nothing I observed suggested that her Honour had erred in the conclusion she arrived at.

35 As to the adequacy of the reasons, it is important to look carefully at what s.134AE requires. The reasons given by the trial court in deciding a serious injury application must, according to the section, "not be summary reasons but be detailed reasons which are as extensive and complete as the court would give on the trial of an action". The statute does not create some new, higher, standard to be complied with by a judge giving reasons. What s.134AE means is that we should apply to reasons for decision in serious injury applications exactly the same criteria of adequacy as we apply when hearing an appeal from a judgment in a trial.

36 We do not expect perfection in reasons for judgment. What is required, as this Court has said repeatedly in recent years, is a sufficient account of the findings of fact made and of the process of reasoning by which the decision is arrived at. Evidently Parliament in enacting s.134AE had some sense that there was either a practice or a temptation to give what are described as summary reasons, and was concerned to make sure that this did not occur. I am not quite sure what "summary reasons" would look like, but on any view the reasons her Honour gave in this case are not to be characterised as mere summary reasons. On the contrary, this was an exemplary set of reasons. We in this Court would be glad if every County Court judge, in deciding these applications, would give reasons which are as clear and comprehensive, without being long-winded, as these reasons are.

37 In my opinion, what her Honour said was quite sufficient to convey to the parties and to their legal representatives that this application had been dealt with by someone who knew what she was doing, who understood the applicable law and was well on top of the facts as presented to her in the evidence. Parties cannot reasonably expect more than that.

38 I reject Mr Kennan's submission that there was a gap in the reasons, between the statements in summation of her Honour's view of the impairment and the disfigurement respectively and her conclusion that those findings did not cross the serious injury threshold. Counsel for the respondent helpfully drew attention to what was said by the Full Court of this Court in Humphreys v. Poljak[13], in the part of the judgment which decided the matter of Fleming v. Hutchinson:

"There can be no doubt that the applicant has suffered and is suffering from long-term impairment of the function of the foot. She has suffered a crush fracture involving some weight-bearing joint surfaces of the foot, and there is clinical and radiological evidence of the development of arthritis, which will probably progress, and there is risk of necessity of surgery in mid-life. She will never have a foot which functions entirely normally. All these considerations must lead to the conclusion that there is long-term impairment, which may involve at least moderate disruption of her activities.

However, we are not persuaded that the long-term impairment is properly to be described as "serious", according to the meaning we think must be given to that expression."[14]

39 As can be seen, the experienced judges of the Full Court set out their conclusions about the nature and extent of the impairment suffered by the applicant, and then concluded, without further explanation, that they were -

"not persuaded that the long-term impairment is properly to be described as 'serious'".

It could not sensibly be suggested that these were merely "summary reasons". What was said in that case was, like the present judgment, a good model for reasons for decision in this area.

40 The statutory language which governs the "serious injury" question is the language of impression. For better or for worse, the legislature has chosen to adopt adjectival language, the language of description and comparison. The court must be satisfied that the relevant consequence - in this case, the pain and suffering consequence - when compared with other cases in the range of possible impairments or disfigurements, "can be fairly described as being more than significant or marked and as being at least very considerable."

41 What must be compared is not the impairment or the disfigurement, but the consequences of the impairment or the disfigurement, whether pain and suffering consequences or loss of earning capacity consequences. The question is whether those consequences are to be described as "more than significant or marked", and as being "at least very considerable". A phrase like "at least very considerable" does

not allow of any quantification. Rather, it requires the judge to make a judgment, based on an overall evaluation of the evidence.

42 It does seem to me to be unfortunate, from the perspective of injured persons, that what is obviously regarded as a very significant opportunity - that is, to sue at common law - should have been made to depend on such imprecise, impressionistic, adjectival criteria. Whether that can be regarded as a satisfactory way of differentiating between those who can sue and those who cannot is, of course, a matter for Parliament. But it is hardly surprising that a person in the position of the appellant is puzzled as to why a particular judge concluded that what the appellant himself regards as serious consequences did not meet this adjectival standard of "at least very considerable". It is precisely because there is no way a judge can explain that ultimate conclusion, other than to say "that is my view", that the appellant is left puzzled and dissatisfied.

43 The nature of the test seems to me to reinforce what the Court said in Barwon Spinners, about the importance of acknowledging the experience which County Court judges bring to bear in hearing these applications. There is even greater scope for puzzlement and disappointment when appeal court judges are asked - as we were asked today - to have a look at scarring on an arm, and limitations of movement in an arm, and make up our minds as to whether, in the range of possible impairments or disfigurements which we might be able to imagine, the relevant adjectival phrase was applicable. That is, of course, what we are required to do on an appeal by way of rehearing. But the danger of inconsistent decision-making is very real, given that judges of this Court are rarely exposed to physical evidence of this kind. That is why we must pay proper regard to the advantages of the trial judge, as delineated in Barwon Spinners, and keep steadily in mind that our focus, having examined the evidence, is on whether the judgment below was wrong.

44 For the reasons given by Eames, J.A., I agree that the appeal should be dismissed. I should add that I also agree with Maxwell, P., that the reasons given by her Honour were exemplary.

45 The order of the Court is:

1. Appeal dismissed.

2. The appellant pay the respondent's costs of the appeal.

[1] [2005] VSCA 33.

[2] [1998] 3 V.R. 833.

[3] At [45].

[4] [1990] HCA 47; (1990) 171 C.L.R. 167.

[5] [2005] VSCA 33 at [45]- [49].

[6] At [49].

[7] [2006] VSCA 180.

[8] [2005] VSCA 1, at 28, Batt and Vincent, JJ.A. agreeing.

[9] [2004] VSCA 91, at [3]-[4] per Buchanan, J.A.

[10] [2001] VSCA 11 at [14].

[11] See e.g. Fox v. Percy [2003] HCA 22; (2003) 214 C.L.R. 118

[12] The reference is to Wednesbury Corporation v. Minister of Housing and Local Government [1965] 1 WLR 1300.

[13] [1992] VicRp 58; [1992] 2 V.R. 129

[14] At 146