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: