Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267

Court of Appeal (Vic)|2007-11-28|Before: BUCHANAN, NETTLE, ASHLEY, KELLAM and DODDS-STREETON, JJA

**Accident Compensation - Leave to bring common law proceedings - Judge's reasons inadequate - Proceeding remitted - Accident Compensation Act 1985 (No 10191) s 134AB (37).

Courts - Appeals - Court of Appeal - Appeal from County Court - Accident compensation - Appeal from determination regarding serious injury - Principles and constraints - Court directed to 'decide for itself' - Meaning and effect - Accident Compensation Act 1985(No 10191) ss 134AC, 134AD.**

**1 I have had the considerable benefit of reading the draft reasons prepared by Dodds-Streeton JA.

2 I agree with her Honour, for the reasons she has stated, that s 134AD of the Accident Compensation Act 1985 ('the Act') does not create a new type of appeal, but rather emphasises that the Court of Appeal is to conduct an appeal by way of re-hearing in accordance with the principles stated by the majority in Warren v Coombes[1]. The appellant bears an onus to persuade this Court that the decision below was wrong, but the identification of specific error is not necessary and, if this Court thinks the decision was wrong, it is not saved because it might be described as embodying a view that was reasonably open to the trial judge.

3 In disposing of applications brought under s 134AB(16)(b) of the Act, it will often be sufficient for a trial judge to set out his or her findings as to the nature and consequences of the injuries sustained by the applicant. In the present case, however, the injury and its effects did not themselves explain the result. The trial judge was obliged to deal with an important body of evidence, which lay at the heart of the appellant's case and might be thought to have led to the application being granted. In the circumstances of this case, the trial judge was required to state whether, and if so why, that evidence was not accepted, or why, if it was accepted, it did not lead to the conclusion that the appellant had sustained a serious injury within the meaning of the Act.**

**4 I have had the very considerable advantage of reading in draft the reasons for judgment of Dodds-Streeton JA.

5 Like her Honour, I see no reason to doubt the interpretation which the court**

in Barwon Spinners Pty Ltd v Podolak[2] placed on s 134AD of the Accident Compensation Act 1985. As her Honour says, an appeal subject to s 134AD is an appeal by way of rehearing under s 74 of the County Court Act 1958 and so it is governed by the principles which were essayed by the High Court in Warren v Coombes[3] and restated by the Appeal Division in Humpries v Poljak[4] in relation to appeals under s 74 of the County Court Act.

**6 I also agree with Dodds-Streeton JA that the County Court is not to be regarded as a specialist tribunal for the purposes of deciding serious injury cases. Nor should the Court in Dwyer v Calco Timbers Pty Ltd[5] be understood as having said the County Court should be so regarded. The point is that there are some judges of the County Court who are very skilled and very experienced in the determination of such applications, and one may properly have regard to that sort of skill and experience when it comes to appeals. Dwyer v Calco said no more.

7 Enough has already been written about the quality of reasons needed in serious injury cases. The difficulty is in its application. Judges whose job it is to decide such cases could be forgiven for tiring of appellate criticism. But if I may say so, with respect, the thing which most often stands out about reasons that are found to be inadequate is their failure to refer to and deal with important evidence and contentions.

8 In this case, as Dodds-Streeton JA points out, the judge failed to deal with important evidence of the appellant's thumb dysfunction, degeneration of pincer grip, hypersensitivity and chronic pain. Those things were central to the appellant's case that he had suffered a serious injury. For all one knows, his Honour may have had good reasons for rejecting the evidence, or for concluding that it did not translate to a serious injury. But he did not state them.**

**9 As this court is constituted, we are not in a position to make the findings of fact as to the level of the appellant's thumb dysfunction, degeneration of pincer grip, hypersensitivity and chronic pain which the judge did not make or express. We have not had the advantage of seeing the appellant's physical condition or assessing his demeanour. Since the outcome of the case so much turns on both, the matter should be remitted.

10 I agree with the disposition of the appeal and orders which Dodds-Streeton JA proposes.**

11 I have had the great advantage of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree with her Honour, for the reasons which she gives, that the appeal should be allowed and the matter remitted to the County Court for fresh hearing and determination.

**12 I have had the benefit of reading in draft the reasons for judgment of Dodds-Streeton JA.

13 I agree with her Honour, for the reasons stated by her, that an appeal subject to s 134AD is an appeal by way of rehearing to be conducted in accordance with the principles stated by the majority in Warren v Coombes[6].

14 I also agree with her Honour's conclusion that the reasons given by the trial judge in this case failed to explain adequately his findings as to the evidence about the appellant's thumb dysfunction, hypersensitivity, chronic pain, anaesthesia and reduced pincer grip and the relevance of such findings to his determination that the appellant had not suffered a serious injury. The fact that the appellant suffered such**

disabilities by reason of his injuries appears not to have been in dispute. However, not having had the advantage of hearing the appellant give evidence, we are not in a position to evaluate the full effect that such disabilities have had, and will leave upon him in terms of pain and suffering. Accordingly the matter should be remitted.

**15 This is an appeal against the decision of a judge of the County Court who refused the appellant, Tyrone Kelso, leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to bring a common law proceeding for damages for pain and suffering due to a workplace injury sustained to his right thumb on 29 June 2001. The learned trial judge concluded that Mr Kelso had not satisfied the statutory test for serious injury impairment established by s 134AB(37)(a) of the Act.

16 The appeal, which is brought under s 74(1) of the County Court Act 1958, is subject to s 134AD of the Act. The appellant argues that the trial judge's reasons for judgment were inadequate because, first, they did not contain any path of reasoning or analytical bridge between the factual findings and the conclusion and secondly, they failed to deal at all with the evidence of his persistent pain. The appellant seeks either that the matter be remitted (should the advantages enjoyed by a trial judge justify that course) or that this Court should determine the application itself.

17 The implications of the appellant's principal argument extend beyond the present case. He contends that the decisions of this Court governing appeals subject to s 134AD are erroneous in significant respects and should now be reconsidered. He argues that the construction of the Court's appellate function under s 134AD in Barwon Spinners Pty Ltd v Podolak[7] ('Barwon Spinners'), reiterated in subsequent decisions such as Dwyer v Calco Timbers Pty Ltd[8] ('Dwyer'), has undermined the Court's statutory obligation to 'decide for itself'. The appellant submits that the relevant decisions dictate an undue deference to the perceived advantages of trial judges, attribute an unfounded advantage of familiarity and experience with serious injury applications to County Court judges, unjustifiably treat the County Court as a specialist tribunal and impose on appellants an onus to establish that the decision below was wrong, contrary to the requirements of s 134AD. A Court of five has been convened in order to consider the appellant's challenge to the construction of s 134AD hitherto maintained by this Court.**

**18 On 29 June 2001, Mr Kelso, who was then aged 19, accidentally sliced off the thumb of his dominant right hand at the distal interphalangeal joint, while operating a bandsaw to cut up a lamb carcass in the course of his employment with the respondent.

19 Following the accident, Mr Kelso was taken to Western General Hospital, where the amputated part of his thumb was microsurgically reattached by Mr Ashton, a plastic and reconstructive surgeon. Mr Kelso was discharged from hospital after a stay of approximately 10 days.

20 Mr Kelso was unable to work for about three months or more after the accident. He then returned initially to perform light packaging duties with the respondent and, later, according to his testimony, upon his own initiative again operated the bandsaw in an attempt to overcome his fear, until the respondent's business closed down. After a period of unemployment, he worked for another abattoirs, Scottsdale Meats, as a boner and bandsaw operator until May 2003, or about 2004, when the company ceased business. He then resumed casual employment with the respondent (which had recommenced operations) as a boner (working only on lamb shoulders, rather than the more difficult cuts he had previously handled) until November 2005, when the respondent again ceased business. From February to May 2006, he was employed by another meat works until that business also ceased. He was then unemployed for a period. At the time of trial, Mr Kelso was employed as a container hand for a transport company.

21 The appellant swore three affidavits. He was called to give evidence at trial and was cross-examined. A number of medical reports were in evidence,[9] including three reports of Mr Behan, a report of the surgeon, Mr Ashton, and reports by a number of doctors, psychiatrists and vocational psychologists. The expert witnesses were not called to give oral evidence.

22 In his affidavit sworn on 6 April 2004, the appellant deposed to the circumstances of the accident, consequent nightmares and anxiety about his health, his return to work in other meat works (where he was unable to exceed the tally in order to earn overtime) and to the restrictions placed on his ability to play football and cricket as before, due to the accident. He also deposed that his social life had been much reduced.

23 He further deposed that the injury had affected his ability to write (so that he now gripped a pen differently) and to hold a knife, which he could no longer grip properly.

24 At trial, the appellant demonstrated his method of writing to the trial judge, and indicated that he experienced some difficulty.

25 In cross-examination, he maintained that he had difficulty in washing dishes as a consequence of the injury and had cut himself on a knife whilst doing so, but did not notice it due to a lack of feeling in his injured thumb. He testified that dishes would slip through his hands as a direct result of his impaired thumb, so he no longer did the washing up at all.

26 When cross-examined in relation to a medical specialist's opinion that his grip had 'returned ... almost back to normal', the appellant responded: 'I just grip [knives] any way up. I eat like that now. That's the way I eat.'

27 He testified that it was difficult for him to 'individualise' pages in a book, so that he tended to grasp three or four at a time, although he was unsure of the cause.

28 In his affidavit sworn 6 August 2004, the plaintiff also deposed to his experience of persistent pain resulting from the injury as follows:**

Following the accident I took Tramil to relieve the pain but it made me feel sick and I was prescribed Valium and from time to time I still take Panamax for pain. My ability to work is affected because of the difficulty I now have in holding and gripping the knife. My thumb is particularly sensitive to the cold environment. I have fairly constant pain in my thumb radiating to my arm and my hand sweats and I have numbness around the base of the thumb in the pulp of the thumb.

As a result of the injury I no longer have the ability to bend the end joint of my thumb and when doing so my wrist becomes tight and painful. I have lost sensation in the pulp of my thumb and I have difficulty gripping because of the lack of feeling. I do not know how hard I am grasping things such as dishes. Cold weather exacerbates the pain which shoots up to my forearm...I cannot write for lengthy periods and I have ongoing pain in the base of my thumb which is worse after working.

30 In his affidavit sworn 3 October 2006, Mr Kelso stated that the above effects were continuing. In particular, he deposed:

I have stopped using medications because I found that these did not provide effective relief for the ongoing pain which I suffer. I find that my symptoms are distinctly worse during the colder winter months and it's also during these times that I notice more pain spreading up my right arm. When I am at work I am able protect myself to some extent by wearing two cotton gloves over my right hand.

**31 In his affidavit sworn 21 November 2006, the appellant stated that in about October 2006, he secured employment as a container hand with a transport company. He wore a specially designed glove to aid his grip and to protect his hand. Further, he stated: 'At the end of each day I have quite severe pain affecting my right forearm and now take Nurofen to relieve this pain.'

32 At trial, Mr Kelso testified that he had been taking Nurofen for his thumb 'pretty much' every day since the accident. When challenged on that assertion in cross-examination, where it was put that he had told various doctors that he had never taken any medication for his thumb, Mr Kelso reiterated the claim.

33 According to the vocational assessment report of Mr William Radley, a psychologist, dated 29 June 2004, Mr Kelso was educated to level 9 at secondary school. He had worked only in 'unskilled and semi-skilled occupations, all at the lowest end of the occupational skill range'. The report stated that Mr Kelso had earned his living 'by using physical strength, agility, dexterity, arm steadiness, wrist, finger speed and other physical abilities. He had no formal education, workforce training or experience for any other type of work'.

34 Mr Radley concluded that the appellant suffered 'a mild to moderate level of physical impairment and a moderate to high level of psychological impairment ...' so that it was 'impossible' for him to return to work as a band saw operator, although he remained able to work as a boner and trimmer and, at the time of the report, was working as a meat trimmer for the respondent.

35 Mr Radley stated that Mr Kelso had some difficulty in 'holding utensils or a pen, washing the dishes and doing up buttons etc.' He reported that Mr Kelso was not taking any medication.

36 Mr Behan, a plastic, reconstructive and hand surgery specialist, conducted an examination of the appellant on 8 October 2003. Mr Behan summarised the appellant's physical and psychological condition at that date as follows:**

[i]n summary the history is of a very successful replantation procedure by Mr Mark Ashton following amputation of the distal portion of the (R) thumb. His complaints relate to neural dysfunction and to restricted range of movement of the distal phalanx of the thumb. Some ongoing recovery of nerve sensation has occurred. Initially the patient was embarrassed by the scarring and the surgical saga, but this is now resolving. Domestically the patient is still living with his mother, and he experiences some concern when sharp objects are handled. This comes to a head even when the patient is doing the washing up, and sharp steak knives etc cause him to worry about possible further injury to that digit. This worry may have an effect on his psychological well being in time and needs clarification from a specialist (neuropsychologist).

**37 Mr Behan concluded that any improvement would be minimal.

38 Mr Behan's report of his further examination on 11 April 2005 summarised the status of the appellant's thumb at the time of the report as follows: 'The patient has achieved full functional recovery in flexion and extension of movement, however there is some slowness in sensory recovery.' He stated that the appellant's anxiety and other psychological problems had diminished, and he had now returned to work as a shoulder boner, which required a different hand use from that necessary for work as a leg boner. He noted no 'dramatic improvement in sensory recovery', but stated that 'power' had returned almost to normal, although continuing sensitivity, and required gloves in cold environments.

39 Mr Behan stated that the appellant had continuing problems at home, experiencing difficulty in gripping knives, and fewer than three to four pages in a telephone directory at one time. Due to the appellant's difficulties in undertaking 'some of the chores around the house' and slow recovery in sensory function as well as hypersensitivity, Mr Behan concluded that he had a '30% disability from an industrial loss point of view...'

40 In a letter dated 13 November 2006, Mr Behan described the appellant's 'radial and ulnar sides of the pulp of the [right] thumb' as 'anaesthetic' (ie lacking sensation), and stated that sections where scarring was evident were sensitive to touch. He also noted continuing sweating in the vicinity of the thumb. He maintained his earlier assessment of the appellant's industrial loss disability, being 30%. As in the earlier report, Mr Behan stated:**

I would consider the patient as not having any capacity for his pre-injury employment, as the cold weather sensitivity he experiences (even when wearing double gloves) causes him significant pain in that digit.

41 The report of a surgeon, Mr Marshall, dated 23 June 2003 of his examination of the appellant conducted on the same day, noted the presence of scarring where the thumb had been reattached, with evidence of tenderness 'on deep pressure.' He also observed:

The skin of the re-planted pulp appears to be of normal texture, but has decreased sensation. Two point discrimination is measured at 15 mm, as compared with 3 mm on the normal side. The flexion of the interphalangeal joint is limited to 45 degrees_._

**42 Mr Marshall considered that the appellant had made a 'good recovery', but noted that loss of movement and sensitivity meant that he could not use his thumb in a 'normal manner'. He considered that the impairment had 'stabilised', so that further treatment was not likely to improve it.

43 Dr Kaplan, psychiatrist, in a letter dated 15 December 2003, set out the results of an examination conducted on 11 December 2003. He noted that the appellant had not suffered any psychiatric illness prior to the accident. He referred to the appellant's reported pain as follows:**

[The appellant] stated that he suffers from a constant mild, aching pain in his thumb and the pain radiates along the front of his forearm. He experiences a more severe pain at the end of the working day and the pain is aggravated when he is in a cold environment or cold weather. He can only use a boning knife for a short period of time.

44 Dr Honey, psychiatrist, conducted an examination of the appellant on 30 June 2003. His report noted, in particular, the thumb's sensitivity to cold weather, and a complete lack of sensation in the distal phalanx. Dr Honey stated that at the time of the report, the appellant was not taking any medication.

**45 The primary judge, in reasons for judgment delivered on 24 November 2006, noted that Mr Kelso's treating surgeon, Mr Ashton, performed a microvascular replantation whilst Mr Kelso was an in-patient at Western General Hospital for ten days immediately following the injury. Mr Kelso was discharged from hospital on 9 July 2001. The trial judge observed that according to Mr Ashton's report dated 19 September 2001, Mr Kelso had 'gone on to maintain an excellent range of movement of the interphalangeal joint' and that, in Mr Ashton's opinion, a very functional result had been achieved.

46 His Honour referred to the hospital report prepared ten weeks after surgery, which recorded that Mr Kelso had an excellent range of movement in his right thumb and that the strength of his left and right thumb, when compared, was the same, although the lateral and tripod pinches in the right thumb were more limited than those of the left thumb.

47 His Honour noted that when Mr Ashton had last reviewed the plaintiff on 6 September 2001, he recorded that, at that date, Mr Kelso had only minimal sensation in his right thumb, which was not unusual, given the proximity to the time of the injury and surgery.

48 The primary judge noted that, as at 6 December 2001, Mr Ashton was unable accurately to estimate the long term prognosis for Mr Kelso's right hand, but had offered to provide a supplementary report in three months' time, when he would be better able to indicate the likely degree of disability and functional loss of Mr Kelso's hand. The judge stated that no such report was in evidence.

49 The primary judge also referred to the evidence of the appellant and Mr Behan as follows:**

The plaintiff gave evidence in support of his application and demonstrated the difficulties he had in holding a pen and I accept that due to his injury, he has had to change the way in which one would normally hold a pen. He lacks any pincer grip of any consequence. He also has difficulty in performing fine manipulative movements with his right hand, for example, he finds that knives are inclined to slip in his right hand. He has difficulty when turning the pages of a book, in turning over just the one page.

Secondly, there is hypersensitivity and as described by Mr Behan in his report of 11 April 2005, poor sensory return in the tip of the right thumb. Mr Behan regarded both the radial and ulnar sides of the pulp of the right thumb as anaesthetic. In summary, there is a lack of sensation in the working area of his right thumb.

Thirdly, he is unable to work satisfactory [sic] or perhaps at all in the meat industry due to cold weather sensitivity. Cold weather sensitivity was experienced even when the plaintiff wore double gloves. That sensitivity caused him significant pain in the right thumb. In the course of his present employment, he wears gloves and takes medication in the form of Nurofen.

Fourthly, he is unable to fish, nor can he play darts, the latter apparently being an activity which he indulged with his father at a local hotel before the accident. In evidence, he said he has only tried those activities once since the injury. I accept, however, that he experienced difficulties when attempting each of those leisure activities.

He plays indoor cricket and he plays football and there was a good deal of evidence and cross-examination about his football and his ability to play football. It was recorded that in the last football season he played in the lower grade or lower division. The higher division, he said, was in his words "too tough" but try as he did, Mr Collis with a series of leading questions, was unable to get the plaintiff to say that it was too tough because of the injury to his right hand.

**50 The primary judge's summary of findings corresponds closely to, and appears largely derived from, Mr Behan's third report dated 13 November 2006.

51 His Honour noted that there was little dispute in relation to the medical evidence.

52 He referred to Eames JA's recognition in Dwyer that the statutory language governing the serious injury question is the language of imprecision and that the trial judge:**

[m]ust 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."[10]

53 His Honour quoted Maxwell P's observations in Dwyer that -

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."[11]

He added that a phrase like 'at least very considerable' did not allow any quantification, but rather required a judgment based on an overall evaluation of the evidence.

I have read and considered the material to which I was referred by Mr Collis for the plaintiff and by Mr Middleton who appeared for the defendant. I have considered the evidence given by the plaintiff and weighed up or evaluated the submissions of both Mr Collis and Mr Middleton.

Assessing as I must the consequences of the impairment to the plaintiff, I am not satisfied that the plaintiff has suffered a serious impairment or loss of a body function, that is, I am not satisfied that the consequences to the plaintiff of the injury he suffered can be described as being at least very considerable. Consequently, the application is dismissed.

55 Section 74 of the County Court Act relevantly provides:

(1) Subject to this section, any party to a civil proceeding who is dissatisfied with any judgment or order of the court may appeal from the same to the Court of Appeal, notwithstanding that the civil proceeding may have been brought to the County Court by consent as provided by this Act.

(3) The Court of Appeal shall decide the matter of such appeal and shall have power to draw any inference of fact and shall on the hearing of such appeal make such order as is just, and may either dismiss such appeal or reverse or vary the judgment or order appealed from, and may direct the civil proceeding to be reheard before the Trial Division of the Supreme Court or the County Court, but shall not in any case unless the Court of Appeal otherwise specially directs remit the proceeding for rehearing before the court constituted by the judge before whom the same was originally heard, and may make such order with respect to the costs of the said appeal and of the proceeding in which the judgment or order has been given or made, as such court may think proper and such orders shall be final.

A decision granting or refusing leave made on an application made under section 134AB(16)(b) shall be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal.

On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.

58 In the Second Reading Speech, the Minister stated, in relation to s 134AD:

This effectively restores the task to be undertaken by a court of appeal to the principles established by Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140. There the Court followed the dicta of the majority as stated by the Full Court of the High Court in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 552.

59 The appellant submitted that the decisions of this Court in Barwon Spinners and, by necessary implication, Dwyer, are wrong, because their approach to the function of the Court of Appeal is inconsistent with the High Court's decision in Fox v Percy[12] and the requirements of s 134AD of the Act. In that context, the appellant contends that Barwon Spinners and Dwyer -

(a) effectively deny litigants the right of appeal by way of rehearing which is required by s 134AD of the Act;

(b) effectively ignore changes in the jurisdiction and powers of intermediate appellate courts which were effected by Fox v Percy;

(c) mandate an unjustifiable deference by the Court of Appeal to an assumed 'familiarity of the County Court judge with the range, or spectrum, of such injuries as might be alleged to constitute "a serious injury"';

(d) incorrectly accord the County Court the status of a specialist tribunal, when, in fact, it is a court of general jurisdiction.

**60 At the hearing, senior counsel for the appellant adopted the observation of Hayne J at the hearing of the special leave application in Dwyer[13] that, in an appeal from a decision as to leave under s 134AB(16)(b), 'the starting point is the statute ... It starts and ultimately must end in s 134AD.'

61 The appellant's primary submission was that an appeal governed by s 134AD was sui generis, and 's 134AD [was] an appeal provision of a completely different kind,' where error was irrelevant. Alternatively, the appellant contended that if a s 134AD appeal were an appeal in a conventional sense, it was, 'at least, a Warren v Coombes appeal', in which, as Ashley JA observed in the course of the hearing:**

[t]he purpose of the Court considering the matter in a real review is to determine whether it [is] persuaded in the end that the judge below did err.

**62 Senior counsel for the appellant contended that s 134AD demanded a 'real review' by the appellate court, which, while it entailed due regard to the trial judge's advantages in seeing witnesses, permitted the appeal court to reach a different conclusion from that of the trial judge, even if it were open to the trial judge to conclude as he did. In such a case, appellate dissent from the trial judge would properly depend, he said, on the degree of advantage the trial judge enjoyed in relation to the issue in question.

63 The appellant's argument on the role of error below shifted somewhat. Senior counsel for the appellant initially submitted that error below retained some relevance in an appeal under s 134AD because, where there was specific error, the appellate court could remit the matter if there were deficiencies in the fact finding below, but otherwise, 'the question of error becomes irrelevant and ... the court's function under s 134AD arises.'

64 Senior counsel for the respondent submitted that Barwon Spinners (at paragraph 49 of the judgment) correctly stated the applicable principles. As s 74(3) of the County Court Act also required the Court to make its own decision, he submitted that s 134AD did little more than remind the Court of, and emphasise, its obligation under s 74(3).**

**65 The requirement that the Court of Appeal 'decide for itself' in s 134AD is an extract from the majority judgment in Warren v Coombes,[14] in which the High Court determined the duty of an appellate court in relation to drawing inferences from uncontested facts, where the trial judge had determined issues of credibility.[15]

66 The majority (Gibbs ACJ and Jacobs and Murphy JJ), in a joint judgment, set aside a trial judge's decision that the respondent was not liable in negligence for failing to take reasonable care in driving his car, which injured the appellant when it collided with his bicycle. The trial judge had largely accepted the testimony of the respondent's witnesses and rejected the conflicting testimony of the appellant's witnesses, save for the evidence of the appellant's father about the position of the car's wheel marks on the roadway. The Court of Appeal majority declined to interfere with the trial judge's finding.

67 The High Court majority considered that the appellate court should not have deferred to the decision of the trial judge, although it was based on his assessment of the credibility of the witnesses. They held that, in accordance with traditional principles (which they preferred), the appeal court was entitled to draw inferences on the basis of established facts and, if persuaded that the trial judge had drawn the wrong inferences from them, could and should substitute its own contrary finding.

68 The appeal in Warren v Coombes was brought pursuant to legislation,[16] which conferred the powers and duties of the court from which the appeal was brought and, like s 74 of the County Court Act, the power to draw inferences and find facts. Legislation in similar, if not identical form, applied to Full Courts of the Supreme Courts of all Australian states.

The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law.[17]

**70 Their Honours recognised the innate tension in such a rehearing between, on the one hand, the appellate court's obligation to form an independent judgment on the facts as well as the law, and, on the other hand, its permanent disadvantage vis-à-vis the trial judge, who had seen and heard the witnesses.

71 They observed that, historically, in reconciling the appeal court's statutory duty to decide the matter independently with the requirement to pay due regard to the advantages of the trial judge, the authorities, from an early stage, distinguished between questions of credibility (where the trial judge was acknowledged to have an advantage) and issues based on documents or established facts from which inferences were to be drawn (where the appellate court was considered to be in as good a position as the trial judge). The leading authorities, until recently, had 'not departed from the view that it is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts.'[18]

72 They referred to Powell v Streatham Manor Nursing Home,[19] which held that in a rehearing, an appeal court could properly draw inferences from uncontested facts. Lord Atkin had there recognised the English Court of Appeal's 'free and unrestricted' jurisdiction, and stated:**

The court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial judge. But the court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of the witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed.[20]

**73 The majority in Warren v Coombes also referred to Benmax v Austin Motor Co Ltd[21] ('Benmax'), in which Lord Simmonds considered it well established that, on an appeal by way of rehearing, the appellate court could draw its own inferences from facts. His Lordship also noted the sometimes elusive distinction between a finding of a specific fact and an inference from such a fact. He observed that, in practice, appellate courts were usually reluctant to reject specific facts founded on the credibility or the bearing of a witness, but were willing to form an independent opinion about the proper inference of fact, subject to giving weight to the opinion of the trial judge.

74 Lord Simmonds quoted Lord Cave's observation in Mersey Docks & Harbour Board v Procter,[22] that, in an appeal from a judge sitting without a jury,**

[i]t is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.[23]

**75 The majority in Warren v Coombes recognised that in Australia, the principles of Benmax, also expressed by the High Court in Paterson v Paterson,[24] had governed an appeal by rehearing and the proper appellate approach to an inference from undisputed facts, until members of the High Court, in a trilogy of cases (Whiteley Muir & Zwanenberg Ltd v Kerr ('Whiteley Muir');[25] Da Costa v Cockburn Salvage & Trading Pty Ltd ('Da Costa')[26] and Edwards v Noble ('Edwards')[27]), expressed diverse views, some of which were inconsistent with Benmax. In those cases, Barwick CJ enunciated a principle of judicial restraint which inhibited an appellate court from drawing an inference of fact contrary to that of the trial judge, unless it were shown that the trial judge was wrong, even if the credit of witnesses were not involved. Barwick CJ also considered that an appeal court should not reverse a trial judge's finding of fact which was reasonably open on the evidence, even if the appeal court would not have been prepared to make the same finding. On that view, although an appellate court had the power to set aside a trial judge's finding of fact, as a matter of principle, it should not do so unless convinced that the trial judge was wrong.

76 In Da Costa, Windeyer J shared and extended Barwick CJ's approach, broadly equating the decision of a trial judge in a negligence case to a jury verdict. He considered that because a finding of negligence tended to involve a value judgment upon facts, rather than an inference from them, the appeal court was unlikely to be as well placed to make inferences as competently as the trial judge.

77 Walsh J, in Edwards, expressed a view which appears to be compatible with the subsequent judgments of the majority in Warren v Coombes and Gleeson CJ, Gummow and Kirby JJ in Percy v Fox.

It may be said, in my opinion, that in whatever form of words the principle is expressed, it requires, even in a case in which the credibility of witnesses is not involved and in which the contest is as to the inference or conclusion that should be drawn from a set of primary facts, that if a choice has to be made between two conclusions both of which are open on the evidence and which are fairly evenly balanced, then the decision of the trial judge should stand. The appellate court should not deal with the case as if it were trying it at first instance. But, as has often been stated on high authority, the court has a duty to make up its own mind. It will do this taking into account the judgment of the primary judge and recognizing that it ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definite preponderance of one view over the other. Subject to that limitation and subject to the well-organized limitations concerning conflicting testimony and the credibility of witnesses, the appellate court should give effect to its own conclusion.[28]

79 Menzies J, in Edwards, maintained the more traditional view expressed in Benmax and Paterson v Paterson. His Honour stated:

[a]s I read the cases, the rules have remained very much as they were established over 70 years ago. They are (1) upon such an appeal the task of a Court of Appeal is so different from its task in considering motions for new trials after a jury verdict that it is wrong to use in relation to one the language appropriate to the other; (2) a Court of Appeal does not supplant the trial judge by trying the case afresh on the record; (3) a Court of Appeal, while having regard to the judgment appealed from, is under a duty to make up its own mind as to the facts; (4) special weight ought to be given to the judgment appealed from if anything turned upon the credibility of witnesses or any other matters as to which the judge hearing the case would have an advantage over the Court of Appeal; (5) in any case, even those within (4), where a Court of Appeal is satisfied of error on the part of the trial judge it will correct that error, even in cases where, although the reasons for the judgment of the trial judge do not themselves disclose any error, the result satisfies the Court of Appeal that there was undisclosed error.[29]

**80 Warren v Coombes was thus decided in the context of an unresolved judicial controversy. There was some judicial support for the approach of judicial restraint developed by Barwick CJ, which required demonstrated error below as a precondition for reversing findings of, and inferences from fact, even if the appeal court would have reached different opinion, provided that both inferences were open. Other judges supported the more traditional approach, which required the appellate court to form, and give effect to, its own conclusion if, after giving due weight to the trial judge's advantages, it differed from him. Under the latter approach, appellate intervention did not depend on error below, save in the broad sense that the appeal court had reached a different conclusion on the outcome of the case.

81 The majority in Warren v Coombes endorsed the line of authority represented by Paterson v Paterson and the House of Lords in Benmax. It was in the context of the controversy over the preconditions of appellate interference with the decision below that they made the following statement, from which the central requirement of s 134AD is directly derived:**

[w]e can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[30]

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.[31]

**83 While the majority characterised their approach as the reinstitution of an orthodox principle, it signalled a departure from unquestioning submission to the advantage of the trial judge. In Warren v Coombes, the High Court reasserted the traditional appellate obligation to draw, where appropriate, independent inferences from established facts, as an element of the wider duty of a court of appeal to 'decide for itself'. It rejected the more recently developed doctrine of judicial restraint in relation to inferences from established fact.

84 The eclipse of 'judicial restraint' was extended in Fox v Percy,[32] where the High Court majority made clear that a trial judge's findings of fact based on witness demeanour or credibility, hitherto almost invariably treated as sacrosanct, were likewise subject to scrutiny on appeal. It affirmed the appeal court's duty to avoid uncritical deference to such findings. The majority held that, although allowance must be made for the trial judge's advantages, if his or her findings based on witness credibility were inconsistent with incontrovertible facts, glaringly improbable, or contrary to compelling inferences, then the appellate court must give effect to its own contrary conclusion. Further, they questioned the degree to which matters such as observation of witnesses' demeanour constituted a compelling advantage.

85 In Fox v Percy, the majority, Gleeson CJ, Gummow and Kirby JJ, concluded, in a joint judgment, that the Court of Appeal majority had correctly substituted its own conclusion that the appellant had been riding her horse on the wrong side of the road when she was injured, for the contrary finding of the trial judge. Their Honours held that an appellate court was entitled to prefer the inferences it drew from the 'incontrovertible' evidence of skid marks on the site where the appellant's car collided with the respondent's horse, killing it and injuring the respondent. The skid marks (which had been sketched contemporaneously by an attending police officer) contradicted the appellant's version of events. They remained unexplained or insufficiently explained. The High Court majority regarded the**

[s]kid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal, conducting the rehearing, to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion.[33]

**86 Although the trial judge had had the advantage of observing witnesses and had made findings of credit in favour of the appellant, the police officer's evidence about skid marks on the respondent's side of the road constituted inconsistent facts 'incontrovertibly established by the evidence', which were accepted by the trial judge. In those circumstances, the oral evidence of the appellant's witnesses did not sustain the trial judge's final opinion. Although the trial judge had also accepted an expert report, the expert was not called, so the majority concluded that the Court of Appeal was in as good a position as the primary judge to evaluate the worth of his report.

87 The right of appeal to the Court of Appeal in Fox v Percy was conferred by legislation[34] and lay as of right to the Supreme Court. The Supreme Court Act 1970 (NSW), s 75A prescribed an appeal 'by way of rehearing' (when the decision appealed was given after a hearing) and conferred on the appeal court the powers and duties of the Court from which the appeal was brought (including drawing inferences, making findings of fact and assessing damages). The appellate court was also empowered to receive further evidence, but in the main, only in special circumstances.[35] It was empowered to make any finding or assessment, make any order or give any direction which ought to have been given or made, as the nature of the case required.

The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal_._

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[36]

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons.

**90 They recognised that the appellate court was required to weigh conflicting evidence and draw its own inferences and conclusions, which, as Warren v Coombes made clear, it could be as well-placed as the primary judge to do where the facts were undisputed. Although, following Warren v Coombes, a trilogy of High Court cases (Jones v Hyde;[37] Abalos v Australian Postal Commission[38] and Devries v Australian National Railways Commission[39]), had expressed a 'corrective,' reiterating the traditional requirement to respect the advantages of the trial judge, especially where his or her decisions might be affected by the credibility of witnesses, their Honours made clear that a 'ritual incantation' about a witness's credibility did not excuse the appellate court from making its own assessment and forming its own conclusions, particularly where there were 'incontrovertible' facts to the contrary, and even, 'in some, quite rare cases', where there were facts falling short of 'incontrovertible'.

91 The majority in Fox v Percy did not, in terms, question the validity of the trilogy of cases reaffirming the need to respect the trial judge's advantages in relation to credit and seeing witnesses, and to make proper allowance for them. Indeed, they referred to many examples of such advantages (not confined to seeing witnesses) and concluded that it was only if, after having made allowance for them, that the appeal court may 'conclude that an error has been shown, [and] they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.'[40]

92 In CSR Ltd v Della Maddalena ('Della Maddalena'),[41] the High Court reaffirmed the principles stated by the majority in Fox v Percy. In Della Maddalena, the appeal court had reversed the trial judge's decision and substituted its own conclusion that the respondent had sustained a psychiatric injury due to his reaction to exposure to asbestos. Kirby J (with whom Gleeson CJ agreed) stated that the appellate court had considered a number of ultimately uncontested objective facts, looked 'very closely at the premises upon which the primary judge had reached his conclusion adverse to the respondent' and correctly reached its own conclusion, which was 'more harmonious with the uncontested facts ...'[42]

93 Kirby J emphasised that Fox v Percy represented an:**

[i]mportant change in the statement by [the High] Court of the jurisdiction and powers of intermediate appellate courts ... founded in a close analysis of the statutory provisions governing the legal task in issue. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.[43]

**94 In Kirby J's view, in Fox v Percy, the High Court 'corrected the non-statutory excesses of earlier appellate deference to the erroneous fact-finding by primary judges'.

95 Under the 'shift in instruction' in Fox v Percy, the correct appellate approach was, Kirby J said, to examine whether the reasoning of the primary judge rested on a credibility determination or inferences from facts which were undisputed or found by the trial judge, but:**

Even in the case of expressed credibility findings, the statutory duty to conduct a real "rehearing" remains. It may sometimes justify reversal of a decision by a primary judge who has "failed to use or has palpably misused his advantage" or where "incontrovertible facts or uncontested testimony" demonstrates the finding to be erroneous; or where they are "glaringly improbable" and "contrary to compelling inferences".

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It "will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."[44]

Victorian approach to appeal prior to introduction of s 134AD

1"> **96 In Humphries v Poljak,[45] the Full Court determined five separate appeals from the County Court in relation to the grant or refusal of leave to bring common law proceedings for damages in respect of personal injury pursuant to s 93(4) of the Transport Accident Act 1986. The County Court could not grant leave unless satisfied that the injury was a 'serious injury' within the meaning of the relevant provision of the Transport Accident Act.

97 Crockett and Southwell JJ delivered an influential joint judgment, from which some significant terminology of s 134AB of the Act is directly derived.

To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as "very considerable" and certainly more than "significant" or "marked"? Beyond such guidance it is, we think, not possible to go.[46]

99 Their Honours also endorsed Adam J's statement in State Rivers & Water Supply Commission v McIntyre ('State Rivers')[47] of the function of the Full Court on appeals from the County Court, by virtue of s 74 of the County Court Act. In State Rivers, Adam J stated:

[t]he function of this Court, on appeal, is to consider for itself upon the evidence before the learned judge whether it is proper that the leave sought be granted. Its proper function on this appeal is not, I think, to determine whether the learned judge might properly have arrived at the decision which he did, but to consider for itself what was the proper order to have been made. In other words, this appeal involves as it were a rehearing de novo upon the material before the learned judge. Had the conclusions reached by the learned judge depended on credibility of witnesses and findings on disputed facts, other considerations would no doubt have arisen, but this is not such a case. We are in as good a position as the learned judge to arrive at a conclusion upon the affidavit evidence, which was not subjected to cross-examination.[48]

100 Southwell and Crockett JJ thought that the appellate court's 'amplitude' of powers pursuant to the County Court Act s 74, to 'decide the matter of such appeal', 'draw any inference of fact' and 'make such order as is just' supported Adam J's conclusion that it must 'consider for itself what was the proper order to have been made'.[49] They disagreed, however, with Adam J's characterisation of the appeal as 'a rehearing de novo,' which would involve:

[a] complete rehearing of the matter by the appellate court. The initiator of the proceedings below would be required on appeal to commence the rehearing proceedings regardless of whether or not he was the appellant or respondent. It would be open to the parties on the rehearing to call evidence different from that adduced before the primary tribunal.[50]

**101 They concluded that the rehearing was more limited than a rehearing de novo, in which 'witnesses could be led again in chief and cross-examined'. In particular, the power in s 74(3) of the County Court Act to direct the matter to be reheard before a Supreme Court or County Court judge suggested 'that it was not intended that the Supreme Court sitting in banc should conduct a rehearing de novo as properly so called'.[51]

102 In the appeals before them, their Honours observed that:**

In deciding for itself what was the proper order to have been made this court is, of course, in as good a position as the primary judge to decide the matter where the material is confined to affidavits and exhibits thereto.[52]

103 It would be otherwise, they thought, where the trial below had involved cross-examination. They stated that:[53]

In such a circumstance, if the primary judge has made a finding of fact which he was led to make by reason of his resolution of an issue of credibility made possible by the advantage he enjoyed of seeing and hearing a witness, then the appellate court must accept the finding of fact. As was said by the majority in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, at 552: "The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In doing so, it must recognise the advantages enjoyed by the judge when he conducted the trial. See, too, Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422."

**104 The validity of their Honours' conclusion that the appellate court, in deference to the trial judge's advantages acknowledged in Warren v Coombes, 'must accept that finding of fact' must now be re-evaluated, as it is inconsistent with the majority judgment in Fox v Percy.

105 Southwell and Crockett JJ made clear that error of law was irrelevant on appeal. They stated:**

This view of the nature of this court's duty in each of the five appeals presently before it means that it is under no obligation (indeed it would be irrelevant) to examine the reasons given by the primary judge in order to ascertain whether he has fallen into any error of law in the course of reaching his decision.[54]

**106 They concluded 'This court must, as we have said, subject to the limitations we have defined, decide each application for itself'.

107 Southwell and Crockett JJ did not, however, accept the proposition expressed by Starke J in Piro v W Foster & Co Ltd,[55] that it was 'for the appellant to satisfy the Court that his appeal should be allowed: the Court should not set aside the judgment unless satisfied that the judge was wrong and that his decision ought to have been the other way.'[56] They stated:**

We do not think we should accept this submission. The State Rivers case was decided after Piro v W Foster & Co Ltd. It is a decision of this court and, so, binding upon us. Furthermore, it has since been followed by this court. Moreover, the observation we have cited from Piro v Foster is one that in the form that it takes is the opinion of Starke J alone. It does not relate to the amplitude of this court's power when it entertains an appeal pursuant to s 74 of the _County Court Act 1978 (_under which section these five appeals are brought). The State Rivers case was an appeal pursuant to that section. It is thus directly on point.[57]

108 The precise meaning and extent of their Honours' rejection of Starke J's statement in Piro v W Foster & Co Ltd, in favour of that of Adam J in State Rivers, is unclear. Starke J's statement was derived from an observation of Viscount Sankey in Powell v Streathham Manor Nursing Home, a case approved by the majority in Warren v Coombes. Viscount Sankey stated:

What then should be the attitude of the Court of Appeal towards the judgment arrived at in the Court below under such circumstances as the present? It is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not rehear the witnesses. It only reads the evidence and rehears the counsel. Neither is it a reseeing Court. There are different meanings to be attached to the word "rehearing." For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out his case and call his witnesses. The matter is rather different in the case of an appeal to the Court of Appeal. There the onus is upon the appellant to satisfy the Court that his appeal should be allowed. There have been a very large number of cases in which the law on this subject has been canvassed and laid down. There is a difference between the manner in which the Court of Appeal deals with a judgment after a trial before a judge alone and a verdict after a trial before a judge and jury. On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses ... [58]

**109 Lord Sankey's words were directed at the distinction between, on the one hand, a hearing de novo or 'perfect' rehearing (where the complainant must make out his or her case again), and, on the other hand, a full appeal (in which 'the onus is upon the appellant to satisfy the Court that his appeal should be allowed').

110 In contrast, Adam J's statement that the appeal court must 'consider for itself the proper order to have been made and not whether the judge might properly have made the order he did' was made in the context of an appeal which his Honour classified as a rehearing de novo, which, (given the lack of oral evidence), he considered the appeal court as well placed as the trial judge to decide.

111 In Mobilio v Balliotis ('Mobilio'),[59] although the Full Court was divided over whether a decision under s 93(4) of the Transport Accident Act was essentially a discretionary judgment (akin to assessing the non-economic component of damages), it uniformly viewed specific error, or a conclusion so plainly wrong that it must have involved error, as a precondition of appellate intervention.**

**112 The Act was amended to incorporate ss 134AA, 134AB, 134AC, 134AD, 134AE and 134AF by s 18 of the Accident Compensation (Common Law and Benefits) Act 2000, which allowed claims for damages for injuries arising after 20 October 1999. The aim of the amendment was to restore common law rights for damages for work related injury abolished by previous legislation.

113 The Act has a long and complex legislative history. As observed in Barwon Spinners, it has been characterised by a very large number of often piecemeal amendments, which ultimately culminated in a complex division of temporal categories of possible common proceedings against employers for damages for work related injury.

114 By s 134AB(16) of the Act, a claimant is prohibited from bringing common law proceedings for damages for a work-related injury where the worker's resulting degree of impairment is assessed at less than 30 per cent, unless one of a number of alternative preconditions are satisfied. Either, pursuant to s 134AB(16)(a), the authority or a self-insurer (being satisfied that the injury is a serious injury) can issue a certificate consenting to bringing the proceedings or, pursuant to s 134AB(16)(b), a court can give leave to bring proceedings on the application of the worker.

115 Section 134AB(17) relevantly provides that, for the purposes of obtaining a certificate or the court's leave to bring proceedings under sub-s (16), a worker who has a serious injury in the sense of pain and suffering consequences or impairment, loss of body function or disfigurement, can bring proceedings only for damages for pain and suffering.

116 By s 134AB(19)(a), the Court may not give such leave unless it is satisfied, on the balance of probabilities, that the injury is a serious injury.

117 Section 134AB(38)(c) provides that an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-s (16) unless the pain and suffering consequence or the loss of earning consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as 'being at least very considerable'.

The terms "serious" and "severe" are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder as the case may be with respect to -

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.

**119 Section 134AB(38)(h) and (i) preclude the psychological or psychiatric consequences of a physical injury and physical consequences of a mental or behavioural disorder from being taken into account for the purposes of permanent serious impairment or loss of a body function.

"pain and suffering" damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life.

(a) permanent serious impairment or loss of a body function; or

**121 Thus, as a precondition of leave, the pain and suffering, or loss of amenities of, or enjoyment of, life, must have consequences which are at least very considerable and more than significant or marked, when judged in comparison with other cases in the range of possible impairments or losses.

122 While s 134AB(38)(c) in terms directs a comparison between pain and suffering or earning consequence of impairment or loss of body function with 'other cases in a range' of possible impairments or losses, it is clear that the relevant comparison is directed at the consequences of different kinds of impairments or losses of body function.**

**123 In Barwon Spinners, the Court of Appeal considered in detail the then recent amendments to the Act, including s 134AD.

124 In their joint judgment, Ormiston, Chernov and Phillips JJA held that:**

(a) the time for the assessment of the injury, even on appeal, was the time when the application for leave was heard below.

(b) the Court of Appeal must act on the evidence before the judge at first instance, at least in the main, and the receipt of other evidence was limited in accordance with 'the ordinary principles governing the receipt of further evidence by an appellate court'.

(c) the appeal to the Court of Appeal was, by virtue of s 134AC, as of right, so that whatever the result at first instance, the dissatisfied party may have appeal as of right.

It must be accepted by reason of s 134AD that the appellate court is to decide the question of serious injury, without inhibition if at the end of the day it differs from the opinion of the judge at first instance.[60]

**126 They accepted, as stated by the majority in Humphries v Poljak, that the appeal, although a 'full' appeal or an appeal proper, was not a rehearing de novo. In consequence, some constraints or limitations applied. Two major constraints were recognised.

127 First, it was '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.'[61] The appellant also had the burden of persuasion when attacking a finding of fact.

128 In that context, their Honours considered, but rejected as 'too absolute', the proposition that 'error below was now quite irrelevant on appeal'.[62] That followed because the appeal pursuant to s 74 of the County Court Act was not a rehearing de novo, in which error below is uniquely irrelevant. While s 134AD clearly precluded the Mobilio approach (under which appellate intervention was justified only by specific error or a determination below 'simply so wrong that it must have involved error; though error which cannot be identified'), their Honours considered that 'arguably', s 134AD rendered irrelevant only such errors, that is, of the kind necessary in appeals against the exercise of discretion. The continuing relevance of error below was not, they thought, otherwise inconsistent with the appeal court's statutory obligation to decide the case for itself.

Error below is always significant on appeal (save only the appeal by rehearing de novo); for, obviously, unless affected by error the order below will not be disturbed.[63]

130 The second major constraint was the requirement, endorsed in Warren v Coombes and Humphries v Poljak:

[t]o recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses and who might, for example, have had an in-court demonstration...or gone on a view...[64]

**131 The Court noted that such advantages could play a significant role in appeals from decisions under s 134AB(16)(b). It reaffirmed Brooking JA's recognition in Mobilio that if, for example, expert medical witnesses were not called or cross-examined, and their expert reports depended, either considerably or in part, on the accuracy or credibility of the injured claimant as a historian, the advantage derived from seeing the claimant extended to the assessment of the medical reports.

132 Furthermore, the Court considered that, because the decision to grant or withhold leave involved such significant elements of fact, degree and value judgment, it could not be wholly equated to a finding of negligence.

The determination that an injury is or is not serious injury depends upon fixing it within a range of comparable conditions and so, as the High Court put it, upon "the opinion of a judge familiar with a range of conditions within which the instant condition occurs". Some County Court judges are dealing with such 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 a spectrum of such cases. That is an advantage which can be highly significant and it is one not ordinarily enjoyed by the appellate court. Therefore, according to long-standing authority, it is one to which an appellate court should have regard, giving it such weight as it deems appropriate - and to do so is not to disobey the statutory injunction to "decide for itself" the issue of serious injury.[65]

To put it shortly, the appellate function will always be encouraged by an appellant's demonstrating specific error, whether of fact or law. If it can be shown that the judge at first instance mistook his task or, for instance, erred in his understanding of the facts, the court must reconsider the case as a whole in order to confirm or to reject the decision below according to its own opinion on appeal on the question of serious injury. (Indeed it may even have to remit the case for further hearing if, say, one or other of the parties has not had a proper opportunity to establish its case or perhaps some finding of fact is needed which cannot be made without a rehearing.) But specific error is not a necessary prerequisite in view of s.134AD; nor is it enough to ask if the decision below is "plainly wrong" - though if it is, no doubt the appellate court will not hesitate to substitute its own opinion for that expressed at first instance. It will always be enough if, after due consideration of the material below (and any further evidence that may be admitted on appeal subject to the usual limitations), the appellate court is of opinion that the decision below was wrong, though before arriving at such a conclusion it will be necessary for the court to have regard to any relevant advantages enjoyed by the trial judge, including, when appropriate, the familiarity of the County Court judge with the range, or spectrum, of such injuries as that in question and the place within that range to be taken by the particular condition of the applicant.[66]

135 In Shock Records Pty Ltd & Anor v Jones,[67] Bell AJA, with whom Callaway and Ashley JJA agreed, affirmed the authority of Barwon Spinners. His Honour stated:

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 Pty Ltd 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.[68]

**136 In Dwyer,[69] the Court of Appeal reaffirmed the construction of s 134AD adopted in Barwon Spinners. It dismissed an appeal against the decision of a County Court judge refusing leave to the appellant to issue common law proceedings for a workplace injury.

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.

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, this statutory provision abolished, in the appeals to which it applies, the rule adopted in Mobilio v Balliotis 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, the Court, following Abalos v Australian Postal Commission, 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.

(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. I add the observation that this is, in effect, an appeal from a specialist tribunal.

As the Court pointed out in Podolak, 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.[70]

138 Maxwell P, who agreed with Eames JA, added that such appeals were not determined by reference to whether no other view or conclusion was reasonably open on the evidence, or conversely, whether the trial judge's finding was not open. The President stated, rather, that the appeal court was (in the context of the rehearing), deciding the matter for itself, but subject to the principles in Barwon Spinners, from which it was clear that 'we must be satisfied that the trial judge was wrong in coming to the conclusion that she did. Like his Honour, I am not persuaded that her Honour was wrong.'[71]

Appeal under section 134AD of the Act a conventional rehearing

139 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ referred to the four established categories of appeal set out by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd,[72] as follows:

(i) An appeal stricto sensu where the issue is whether the judgment below was right on the material before the trial court;

(ii) An appeal by rehearing on the evidence before the trial court;

(iii) An appeal by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the appellate court admits under a statutory power to do so;

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