Nichols & Anor v Robinson [2001] VSCA 11

Court of Appeal (Vic)|2001-02-22|Before: WINNEKE, P., PHILLIPS and CHARLES, JJ.A.

The application, which is the genesis of this appeal, was strongly contested by the appellants. Through their counsel, a strong attack was mounted upon the respondent in cross-examination, in the course of which much was made of statements made in affidavits sworn by the respondent in this application and the previous one. In essence, it would seem from reading the cross- examination that it was being suggested that the respondent was a "waster" who was under-utilising his earning capacity to inflate his applications, and at the same time overstating his disabilities. Much was made of the fact that the respondent was a committed motorcycle enthusiast who, notwithstanding his injuries, had continued to ride in "side-car races" four times per year.

I have said sufficient to indicate the respondent's credit was much in issue in the proceedings before the judge. That issue was determined by the judge in favour of the respondent. His Honour said:

The evidence accepted by his Honour was in short compass. In essence, it was as the judge set out in his reasons. The respondent, who is 36 years old and married with one child, left school at a relatively young age and has no qualifications except for unskilled and semi-skilled jobs, essentially of a manual and labouring type. Before injuring his arm in the 1990 accident, he had worked for the Barro Group as a dump-truck driver and labourer. He was unable to return to that work because of the injury to his arm and, although he tried one part-time job between 1990 and 1996, he was unable to cope with what he obtained and found it difficult to obtain work consistent with his incapacity. When he recovered compensation for his 1990 injury, he used the proceeds to commence business on his own account as a transport operator under the name and style of ""PJR Transport Pty Ltd", which was engaged primarily in the cartage of soil. The company purchased two trucks and a "bobcat" with the aid of finance. The only two employees in the business were the respondent and his brother. The respondent relied upon his brother to do such work as he, because of the arm injury, could not do. The business had not been in existence for long when the respondent was involved in the motor vehicle collision out of which this application has arisen. He was driving his vehicle when it collided with a vehicle driven by the appellant Nichols. It seems not to be in dispute that Nichols' vehicle was on the incorrect side of the road and, as a result of the collision, the respondent was trapped in his vehicle with his left leg jammed. As a result, he sustained a bad injury to his left foot which included comminuted fractures to the bases of the third and fourth metatarsal bones and a fracture of the adjacent cuboid bone. The fractures to the metatarsals were close to the joints and it did not take long for degenerative changes to occur in those joints. After some ten weeks, the respondent returned to the business of PJR, but he was unable to control the trucks or walk on uneven ground. In November 1996 the business of the company foundered, but it remained in existence as a non-operating company on the advice of the respondent's accountant. The respondent was effectively unemployed until September of 1997 when he obtained a job as a "courier driver" with a firm called "K.D. Freight Services". The respondent earned, in this capacity, $400 a week which, for tax purposes, was paid direct to PJR which in turn paid the respondent. The respondent had to cease working for K.D. Freight Services in December of 1998 because of his increasing pain and discomfort in his left foot. Apart from a couple of part-time jobs, he has been unable to work since. He is now a "house husband" looking after the child whilst his wife works.

The evidence as to the extent of the injury to the foot was not and, having regard to the medical evidence, could scarcely have been in contest. The pain and discomfort is on the increase as is evidenced by the respondent's restriction of movement and increasing pain. This is inevitable because of the arthritis which has set in in the joints and, at least on the view of two of the doctors, will probably lead to the performance of an arthrodesis at some time in the future. The difficulty, of course, is that this will further restrict his movements. The respondent is therefore between "the devil and the deep-blue sea" - namely he can retain mobility at the expense of increasing pain, or succumb to operative treatment which will reduce pain but also mobility.

In the end his Honour concluded that the respondent's injury was a "serious one" in the sense defined by the Act - that is, a serious long-term impairment of the function of the left foot which, having regard to his age and qualifications, will adversely affect his earning capacity "in what was already for him a restricted market". In coming to this conclusion his Honour had no regard, as he said, to the limitations and restrictions imposed by the 1990 accident, save for the fact that the "work-market" for him was restricted at the time when this accident occurred. This was a matter to which his Honour was entitled to pay regard and no issue has been raised about it on this appeal.

This Court has long made its view clear that an appellant who wishes to challenge a trial judge's finding that an applicant who has satisfied, or failed to satisfy, a trial judge that he has suffered a "serious injury", faces a difficult task on appeal; particularly where issues of credit have been involved and resolved below. In Mobilio v Baliotis & Ors[2] five judges of this Court gave various shades of meaning to the appropriate test, but essentially they were all agreed that, in a case where a trial judge has made a decision after having had the advantage of seeing and hearing the applicant, an appellate Court will only interfere with his or her decision, in the absence of specific error, if the Court is satisfied that the decision is plainly wrong. As Tadgell, J.A. put it, in Giannakopoulos v. Melwire Pty Ltd & Anor:[3]:

"Evidently enough, the judge's decision required him to pass upon elements of fact and of degree and to make a value judgment. In the absence of a claim of specific and demonstrable error of fact or law, an appellant who seeks to upset a judgment of that kind undertakes a very difficult task indeed. A Bench of five judges of this Court in Mobilio v. Baliotis, following abundant earlier authority, variously described the kind of error which must be shown in order that such an appellant might succeed. Without canvassing the various permutations or languages there used, and equally without seeking to add to them, I think I may fairly summarise the matter by saying that an appellate Court will not interfere in a case like this unless the decision appears on its face to be patently unsustainable".

On this appeal, the appellants have contended that the reasons given by the trial judge are attended by specific error. First and foremost it was submitted that the judge failed to apply the correct test for "serious injury" laid down by the authorities. Reference was made to Humphries v. Poljak where[4] (at p.140) Crockett and Southwell, JJ. said:

"[The trial judge] is to be affirmatively satisfied ... that the injury complained of is in fact a serious injury. To qualify for such a description there may be an impairment or loss of body function which, as a result of the infliction of the injury complained of is both serious and long-term. We think that: 'Long-term' is not an expression likely to give rise to difficulty. 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 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."

On this appeal counsel submitted that, by resort to the reasons given by the trial judge, it could be seen that he had failed to consider whether the consequences to the respondent of the impairment of the function of his left foot, in terms of pecuniary disadvantage or pain and suffering, had been "very considerable" or "more than 'significant' or 'marked' judged by comparison with other cases in the range of possible impairments or losses". It was suggested the judge should have made specific findings relating to the degree to which the earning capacity of the respondent had been adversely affected, and that he had clearly failed to specify the reasons upon which he concluded that the injury could be fairly described as, at least, "very considerable and more than significant or marked when judged by a comparison with other cases in the range of possible impairments or losses".

In my opinion, this submission has no substance. The "guidance" which was given by Crockett and Southwell, JJ. in Humphries v. Poljak was never intended to be treated as a statutory formula to be "trotted out" by experienced judges on each occasion they were being asked to determine whether the injury being considered was "serious" within the terms of the statute. This judge had, but recently, listened to full argument from two experienced senior counsel who had referred to the relevant authorities and the tests of the level of satisfaction which he needed to achieve before he could find that the respondent's injury met the criterion of "serious injury" within the meaning of s.93(17). Indeed, counsel for the defendants had cited to him the very passage of Humphries which it is now said he failed to apply. Indeed, at the outset of his judgment his Honour had said that he "was aware of" (inter alia) the decisions of the Full Court and of this Court in Humphries and Mobilio. As the judges in Humphries pointed out, what they were saying was given as "guidance" to trial judges in "forming a judgment" as to whether the injury being considered was "serious" within the meaning of the Act. They were not saying that it was a formula, each ingredient of which had to be fully stated and explored in the reasons for judgment. An assessment by the trial judge as to whether an injury is "serious" when measured against the criteria of guidance laid down in the well-known authorities is a task which is being carried out by County Court judges day after day. It is a task which necessarily involves them in making a value judgment as to whether the injury which they are considering is, by comparison with other cases in the range of possible impairments or losses, to be described as "very considerable". 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. Nor, in my view, is it a task where the judge is required to arrive at any firm conclusion as to the extent or degree of pecuniary disadvantage which has accrued to the person injured, as was contended before us. No doubt, as happened here, the judge will form a general view of the impact which the injury has or will likely have upon the plaintiff's earning capacity in reaching a satisfaction as to whether or not the injury is serious in the relevant sense. But it must be remembered that the task which the judge is asked to perform is one which is a prelude to a claim being brought by the plaintiff against the putative defendant. The material which he has before him is necessarily limited and of such a nature as to make it unlikely that he can make findings with the precision which counsel's submission suggest that he should have made. They are findings which, sensibly, can only be made by the tribunal which hears and determines the issues at trial. As Chernov, J.A. pointed out when giving the decision of this Court in Barlow & Anor v. Hollis[5]:

"Thus, although a judgment upon an application for leave to bring a proceeding for damages [pursuant to s.93 of the Transport Accident Act] should set out the relevant evidence (without necessarily doing so in detail), the material facts and the steps in the reasoning process so as to make clear the basis upon which the decision was made ..., given the nature of the proceedings, one would not expect that ordinarily these matters would be canvassed with the same degree of particularity as might be appropriate in a judgment upon the ultimate trial of the action".

In my view, it was not established that his Honour failed to apply the correct test and, accordingly, this ground should fail.

The other ground of appeal which was argued by the appellants was related to the ground which I have already considered. It was submitted by counsel that the judge's reasons were inadequate, in the sense that they do not disclose to the appellants a proper explanation of why their arguments were rejected. Thus, it is contended, a miscarriage of justice has occurred[6]. The basis of this submission was that the judge failed to demonstrate that he had applied the correct test for "serious injury"; that he failed to explain adequately why the defendants' arguments had been rejected; had failed to adequately set out his reasoning process; had failed to show whether the judge considered whether the consequences of the impairment of the function of the left foot were "very considerable"; had failed to demonstrate whether the judge had made a comparison of this injury with other cases within the range of possible impairments or losses and failed to show what were the consequences for the plaintiff in terms of pecuniary disadvantage and/or pain and suffering.

Once again, I find this ground without substance. In large part the arguments are a repetition of the ground alleging specific error. Having regard to the reasons which I have given for rejecting that ground, it becomes difficult for the appellants to persuade me that the appeal should be allowed on the basis that the judge's reasons are inadequate. It seems to be becoming popular in "serious injury" applications, or appeals therefrom, to attack the judgment on the basis of inadequate reasons. In truth, whether reasons are adequate must primarily be measured against the nature of the proceedings[7]. As I have already said, the ultimate issue in proceedings such as those from which this appeal comes, is to be resolved by resort to elements of value judgment, fact and degree upon which reasonable minds might differ. Such proceedings call for an expression of opinion by the judge on the question of whether the injury is "serious" having regard to the judge's experience and the matters properly put before him or her[8]. Such a decision, as I have already stated, is akin to an assessment for damages for non-economic loss in a personal injury action; decisions which do not readily admit of voluminous reasons. Because the nature of "serious injury applications" pursuant to s.93(4) are a prelude to common law proceedings there "seems to be an element of a summary process" in them, as Chernov, J.A. pointed out in Barlow.

In the long run, the adequacy of a judge's reasons must very much depend upon the circumstances of the case in question. They will only become inadequate if the appellate court is unable to ascertain the reasoning upon which the decision is based or it can be seen that justice has not been done[9].

For my own part, I am quite satisfied that the judge's reasons, whilst abbreviated, were adequate to fulfil these criteria. Once the judge had accepted the respondent as a credible and reliable witness, the facts which he found would have made it perfectly obvious, in my view, to the appellants - the TAC being a professional litigator in this field - why he regarded the respondent's injury as a serious and long-term impairment of the function of the left foot. There was no dispute, as his Honour said, as to the nature of the injury or as to its probable effect on the future of a 36-year-old married man. The medical evidence portrayed a picture of constant pain in the left foot which, because of the involvement of the joints could only get worse. As Mr Brown, the treating surgeon, said:

"The natural history of this condition is that it should progressively get worse. His prognosis therefore is for progressive degeneration of this region with associated increase in pain ... If his pain worsens and his mobility deteriorates the only surgical treatment option for [him] is to perform an arthrodesis ... ."

"He finds it difficult to drive trucks for any length of time and has pain and discomfort in the foot and this is ... a direct consequence of the residual degenerative arthritis of the foot which has developed. Prognostically, this will worsen. As regards further treatment, operative fusion can be undertaken. There is no necessity for this to be done as an urgent procedure ... ; if his symptoms become intolerable in terms of pain, that is then the appropriate time. In my judgment, it will be required"

It was well open to his Honour to conclude that this injury was both a serious and long-term impairment of a body function. Indeed, it was not contended that it was not open. His reasons make it clear that, in so deciding, he had regard to the relative youth of the respondent, his pre-accident limitations, the effect which the injury would have on the limited employment opportunities open to him and the progressive and disabling effects which the injury would visit upon the respondent. Bearing in mind the value judgment which the learned judge had to make, it was, as I have said, well open to him to decide as he did. More importantly, for these purposes, his reasons make it clear why he decided as he did. As I have said, it was not necessary for him to recite, root and branch, the "guidelines" set out in Humphries v. Poljak. They were the background against which his judgment of "serious injury" was made. It is, perhaps, interesting to note that in Humphries v. Poljak itself, the majority judges gave their reasons in five separate cases for determining whether the respective plaintiffs had made out a "serious injury". Their reasons confined themselves to the facts of each case, the medical evidence and the effect of the injuries on the prospects of the plaintiffs in determining whether the injury in the respective cases was a "serious" one. They did not find it necessary to recite how or why they came to the view that the injury in question was "very considerable" in comparison with other cases in the range of possible impairments or losses. Such criteria, in my view, are the unstated guidelines which are implicit in the value judgment made; the absence of which will not render reasons inadequate, nor make them inexplicable to parties who litigate the issues in the certain knowledge that the judge's decision has to be supportable by reference to them. Certainly it is futile to suggest, in my view, that the reasons are so inadequate to preclude an appellate court from ascertaining the

reasoning process which led to the decision. For my own part, I have no difficulty in ascertaining, from the judge's reasons, why he decided as he did.

In my opinion, the appeal should be dismissed.

I agree. I add something, however, about the form in which the order was made below when authenticated. The leave for which application was made may be granted according to s.93(6) of the Transport Accident Act 1986 only if the Court is satisfied that the injury which is the subject of the application is a "serious injury", as that term is defined in s.93(17).

As the President has just been described, the County Court judge found that the plaintiff had suffered "serious injury" and he granted leave accordingly, but the form of the order as authenticated is somewhat curious. It describes the judgment of the Court, otherwise than in respect of costs in these terms:

"The Plaintiff's Application for Leave to commence proceedings pursuant to Section 93 of the Transport Accident Act (1986) as amended be accepted and the Plaintiff is accordingly granted leave to bring proceedings to recover damages for his injuries".

With respect, I do not know what is meant by the plaintiff's application for leave being "accepted"; nor do I know why once "accepted" the plaintiff should "accordingly" be granted leave to bring proceedings. Thus far the order seems to me quite wrong.

Leave depends upon the Court's being satisfied that the injury relied upon is a "serious injury" as defined, and if the Court is so satisfied then the order should be simply that leave is granted in terms directly reflecting the relevant provision of the statute, in this case s.93(4)(d). Perhaps the order should also declare expressly that the Court is satisfied that the injury relied upon by the plaintiff is a "serious

injury" within the meaning of s.93(17) for, unless the Court is so satisfied, it is expressly enjoined by s.93(6) against granting leave. But as at present advised I cannot see why the order should go any further than that.

I mention this only in order that the form adopted in this instance when the order was authenticated be not repeated.

I agree that the appeal should be dismissed for the reasons given by the President. I also agree with Phillips, J.A.

The formal order of the Court is the appeal is dismissed with costs

[1] Humphries v. Poljak [1992] V.R. 129.

[6] cf. Sun-Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8.

[7] Sun-Alliance Insurance Ltd. v. Massoud, supra, at 18, per Gray, J.; Barlow v. Hollis, supra, at [14].

[8] cf. Fleming v. Hutchinson (1991) 66 A.L.J.R. 211.

[9] Sun-Alliance Insurance Ltd. v. Massoud, supra, at 18, per Gray, J.

At a glance

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Judgment (41 paragraphs)

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Cases Cited (1)