Richards v Transport Accident Commission [2004] VSCA 91

2. The judgment of Eames, J.A. more than adequately demonstrates why this appeal should be allowed and orders made for a rehearing of the proceeding, as he proposes.

7. I have had the advantage of reading the draft reasons prepared by Eames, J.A. I agree with him, for the reasons he has stated, that the appeal should succeed and the proceeding remitted to the County Court.

10. In my view, inadequacy of the reasons of the judge who heard the application constitutes a basis for the appeal being allowed. While the decision whether the effects of an injury are such as to satisfy the definition of "serious injury" contained in s.93(17) of the Transport Accident Act 1986 is one which "need not be attended by statements of principle, nor does it readily admit of explicit reasoning"[1], the decision-maker is required to at least state what those effects have been found to be.

"The circumstances and consequences of such injury either by way of pain and suffering and loss of enjoyment of life or by way of pecuniary disadvantage [were not] such which meet the test which the plaintiff is required to meet ...".

His failure to set out his findings as to those vital circumstances and consequences, in my view, constituted appellable error, for the want of findings has frustrated the ability of this Court to review the decision.[2] The appellant's description of the consequences of the lumbar injury would appear to amount to a "serious injury". It is critical to know the extent to which those consequences were found to have been established.

19. On 25 May 1996 the appellant, who was then 24 years of age, was involved in a motor vehicle accident within fifteen minutes of which he felt pain in his neck of some severity. The appellant was treated at Williamstown Hospital some days after the accident and a report from his general practitioner of 25 June 1998 indicated that he had attended the clinic complaining of neck pain in July 1996. On 12 July 1996 the appellant provided a medical certificate to the Transport Accident Commission ("TAC") from a doctor at Williamstown Hospital which recorded his treatment being for "soft tissue injury of the neck".

22. After attending on his general practitioner throughout 1996 Mr Richards sought a referral to a specialist and on 28 January 1997 he saw orthopaedic surgeon, Mr Kevin King, who wrote a short report for the general practitioner in which he stated:

"He has obviously sustained the usual jerking strain on the neck with such a collision with damage to cervical discs and associated ligamentous structures at various levels. Fortunately there is no evidence of injury to the thoraco-lumbar spine and no evidence of nerve root irritation. He has a mild chronic disability at present if he takes things quietly and his job as a carpenter is obviously a heavy one and when he gets back to work I think he may get some intermittent flare-ups if he is not careful about twisting and straining his neck. Overall he has done pretty well considering the severity of the original injury."

Mr King assessed the loss of function to his cervical spine as being about twenty per cent.

27. In May 1997 Mr Richards served a claim for compensation on the TAC under the Transport Accident Act 1986 ("the Act"), in which he stated that he had suffered "neck injury". Although we were provided with few details, it seems that the appellant pursued a claim for loss of earnings with TAC based on his complaint of cervical injury. Upon rejection of that claim a hearing occurred at VCAT on 11 November 1999, as a result of which he obtained an award of weekly payments of compensation of $252.00 per week. The appellant appealed that outcome, being dissatisfied with the compensation awarded, but was unsuccessful in the Court of Appeal.

30. Although his claim for compensation to this point had been limited to a complaint concerning his neck the appellant told the judge that within approximately six months of the accident he was experiencing pain in the lumbar area also. Some of the relevant exhibits are not before us but it would seem that being dissatisfied with the outcome of the hearing at VCAT concerning his neck complaint the appellant then made a claim with TAC with respect to injury to his lumbar spine, seeking a certificate consenting to the bringing of common law proceedings on the basis that he had suffered a serious injury. On 2 December 1998 the solicitors for TAC declined to grant a certificate and, pursuant to s.93(4)(d) of the Act, the appellant issued proceedings by way of originating motion against TAC applying for leave of the Court to bring common law proceedings. That application came on for hearing in the County Court before a judge.

33. The amended particulars of injury delivered on 21 October 2002 stated that the injuries were as follows:

"1. Injury to the spine causing pain and severe pain. A. A two-level lower lumbar internal disc injury causing pain and severe pain; B. Associated muscle injury (soft tissue) causing spasm pain and severe pain; C. Restriction in spinal movement (lumbar). 2. As a result of these injuries to the plaintiff's body (spinal/lumbar), the plaintiff cannot maintain manual type of work that is continuous, physically demanding, heavy in nature, repetitively bending and using the back (lumbar), over a period of time, and during and up to an eight to ten hours in a working day (five to six days a week) like the plaintiff once did prior to the May 1996 transport accident, in his chosen professional (sic) as a self-employed carpenter by trade. The plaintiff is unemployable as a professional manual worker and would not be able to maintain a complete full day's work with other fit, healthy, seasoned workers. Because of causing increased levels of pain to severe pain. 3. As a result a `loss of a body function' has been lost by the plaintiff, not being able to maintain a complete full day's work as a manual worker as a result of these spinal injuries, including a loss of quality of life."

37. The hearing was conducted before the judge on 19 and 20 November 2002 and on 22 November 2002 his Honour delivered oral reasons for his decision. His Honour concluded that the appellant had not established that he had suffered serious injury as defined by s.93(17) of the Act, and dismissed the application with costs. Against that decision the appellant has appealed, seeking orders, first, that the Court declare that he had sustained a serious injury and, secondly, that leave be granted to bring a claim for damages.

40. Initially there were only two grounds of appeal, as follows:

1. The decision of the learned judge was wrong in fact and law. 2. On the evidence before him the learned judge should have found that the appellant had suffered a `serious injury' within the meaning of section 93(17)(a) of the Transport Accident Act and should have granted leave to the appellant to institute proceedings to recover damages pursuant to section 93(4)(d) of the Act.

44. Grounds expressed in such terms are plainly deficient[3] but the appellant was not legally represented either before the judge or on the appeal and no point was taken by counsel for the respondent concerning their form. During the course of the hearing, and prompted by questions from the bench which had been directed to counsel for the respondent, the appellant sought leave to amend the grounds of appeal to add a third ground:

3. The reasons for decision of the learned trial judge were inadequate in all the circumstances".

48. Counsel for the respondent opposed the amendment but conceded that the respondent would suffer no prejudice were the amendment then to be allowed. The Court gave leave to amend the grounds of appeal by adding the third ground. Although the Court gave the opportunity to counsel for the respondent to file further submissions to address this issue Mr Middleton advised that he did not need to take advantage of that opportunity, having adequately addressed the issue in the course of the hearing. As I shall discuss, during the course of argument a further issue arose concerning an unsuccessful attempt made by the appellant to tender two affidavits in support of his case. No ground of appeal raised that issue but, without objection from counsel for the respondent, it was nonetheless considered by the Court and I will deal with that matter later.

51. There were two issues before the judge. The first question was whether the plaintiff had suffered any lumbar injury, at all, as a result of the motor vehicle accident and, secondly, if he had suffered a lumbar injury whether it constituted a serious injury within the meaning of the Act. Counsel for TAC (who was not counsel who appeared on the appeal) submitted that no lumbar injury had been suffered but were the judge to find otherwise then it did not constitute a serious injury. The learned trial judge concluded in the appellant's favour on the first question but rejected the appellant's contention that a serious injury had been suffered.

54. Only one witness was called during the hearing, the appellant himself. He was extensively cross examined by counsel for the respondent. In addition to his oral evidence he tendered a considerable body of additional evidence by way of affidavits from former employers, diary notes, an array of medical reports from treating and non-treating doctors and also reports from a chiropractor. Counsel for the respondent also tendered a number of documents including medical reports, a number of which was from a specialist orthopaedic surgeon who had examined the appellant on behalf of TAC. As emerged at the outset of the hearing, the appellant, by earlier order of another judge, had been excused from filing a court book and as a result the judge hearing this application suffered the considerable disadvantage of not having had the opportunity of reading any of the medical reports or the affidavits on which the appellant relied prior to the hearing commencing. That disadvantage may well explain some of the difficulties which I later identify in the findings of fact and reasons ultimately stated by his Honour.

57. A sustained challenge was made by counsel for TAC as to the account given by the appellant of the onset of lumbar symptoms and the seriousness of any such symptoms. As will emerge, there were very significant differences in the content of the medical reports which were filed before the judge. One of the difficulties which confronted the Court on the appeal has been that it was not at all clear precisely what findings of fact had been made by his Honour and, insofar as his Honour based his decision on opinions expressed by the doctors in their reports, why his Honour chose to accept the opinions of some doctors but not others and why his Honour apparently accepted the opinions expressed in some parts of a report of a doctor but not other opinions expressed by the same doctor in that and other reports.

61. In accordance with the usual practice for such applications, no medical witness gave evidence. That practice inevitably creates difficulties for a judge in attempting to resolve issues of fact on which the evidence is in conflict, and it creates difficulties, too, for the appeal court in endeavouring to ascertain the basis on which the judge came to his or her decision as to conflicting evidence, in the event that the judge does not adequately articulate his or her reasoning. Such problems arose in this case.

64. The appellant tendered a large number of medical reports. His Honour mentioned many of those reports in his reasons but the following reports appear to have been of particular importance to his decisions on the two questions before him. The appellant tendered the following significant reports from orthopaedic surgeons (with dates of the reports in parenthesis):

Mr Kevin King (28 January 1997; 3 June 1997; 28 November 1997; 11 June 1998; 26 February 1999); Mr David De La Harpe (5 June 2002; 29 July 2002); Mr Peter Wilde (10 June 2002; 12 September 2002); Mr Peter Turner (15 February 2002; 5 May 2002).

68. Amongst other material, the respondent tendered reports from orthopaedic surgeon, Mr Russell Miller (25 October 1998; 20 February 1999; 24 August 2002).

71. The appellant filed an affidavit dated 1 October 2002 in which he described the accident and the onset of neck pain which, he said, "was (severe) and stayed with me for 24 hours a day, 7 days a week from then on". In his affidavit he swore that within 3 months he realised that his back/lumbar region "may have been damaged/injured" and said he mentioned that to his mother. He did not think that was serious at that time. Over the next 8 months he rested his neck, mainly resting on his bed, and placed no stress on his body. He had moments of back pain but it was not severe like his neck pain. Within 10 months of the accident, however, his grandparents had purchased a bed for him in response to his complaints of back pain. From May 1996 until February 1999 (when he first had the back X-rayed) his lumbar pain got worse "and became a problem 24 hours a day, 7 days a week". He then realised his lumbar injury was serious and a masseur told him that "something was out in my spine". He saw Mr King who "dismissed" his claims concerning his back, as a result of which the appellant pursued only a claim for neck injury in VCAT. He attempted work in September 2000 but lasted only 2 days due to pain and discomfort, and the back pain was 24 hours, 7 days a week. He described seeing other doctors and chiropractors and getting no satisfactory explanation for his back complaint. Then he saw a chiropractor, Paul Perkoulidis, who was the first person to diagnose lumbar injury and who arranged for a CT scan. Initially, so the appellant deposed, TAC accepted liability to pay for Mr Perkoulidis' treatment but then denied liability.

74. In his reasons for decision his Honour found that prior to the accident the appellant appeared to have been a perfectly healthy person who was performing carpentry work of a heavy kind in the construction industry. He noted however that in his last tax return prior to being injured the appellant disclosed having grossed less than $1,000, that being explained, the appellant said, by an industry downturn in that period.

77. In dealing with the first question, the issue of causation as to a back injury, his Honour noted that four days after the accident the appellant first attended a doctor, when he visited Williamstown hospital, reporting neck problems but not back problems. He subsequently attended his general practitioner from July 1996 to January 1997 with respect to his neck complaint and was then referred to Mr Kevin King, to whose report I have earlier referred

80. The judge noted that the appellant had offered an explanation for lodging a claim with TAC specifying a neck injury only. He claimed that within six months of the accident he was feeling pain in the lower back but the judge noted that the appellant said that the pain in the back "had been overwhelmed by the intensity of his neck pain", and his neck injuries caused him to be an invalid. (The appellant said in evidence that he was bedridden due to his neck, and that meant that he was placing little strain on his back.) The judge recorded that it was not until a chiropractor suggested to him that his spine was out of alignment that the appellant sought further advice from Mr King about his back.

83. Prior to the appeal commencing the respondent had filed a notice of contention in which it contended that the judge ought to have held in its favour on the first issue, so as to have concluded that no lumbar injury had been sustained in the motor vehicle accident and, alternatively, that any back injury he suffered was constitutional in origin and not causally related to the accident. On the hearing, however, that notice of contention was abandoned. The decision by the respondent not to press its notice of contention no doubt reflects the fact that there was ample evidence before him to justify his Honour's conclusion as to the first issue. In those circumstances it is not necessary to deal at length with his Honour's reasons concerning the first issue, but some reference is required because the finding that there was a back injury caused by the accident raises questions as to the evidence on which his Honour relied in rejecting the separate contention that the lumbar condition was a serious injury.

86. On 26 February 1999 the appellant saw Mr King again and on this occasion provided a note of symptoms to the doctor. In that note he reported that a masseur and also a chiropractor had told him that his "spine was out of place". He said in his note:

"At this point of time the thoracic-lumbar area has given me no major problems compared with the neck that I sustained. (The only minor symptoms I've had up until recently I thought nothing of it.) Regarding the thoracic area has been an irregular, rough clicking and clunking at times when I straighten out the spine by either pulling my shoulders back or sometimes by moving the upper area."

After saying he had not experienced that clicking and clunking before the accident, he continued:

"Regarding the lumbar area the only minor symptoms I have had have been low down, every now and again it feels like the discs move around and cross in and out but given there's no major problems at this point of time. At this point of time I cannot recall having symptoms prior to the car accident."

The appellant then asked Mr King, in his note, whether the scoliosis in his spine which X-rays had disclosed had been caused by the car accident and asked what would be the long-term effect of it; in particular, "Is there going to be any abnormal wear and tear in a given area compared to a normal straight spine or as I get older is there going to be pain or restriction as a result of this?"

93. His Honour referred to the report of Dr King written on 26 February 1999[4] and noted that Mr King then reported that the appellant had only "a minor thoracic scoliotic curve unrelated to the accident, which was causing no symptoms". His Honour said in his reasons: "It is to be noted that no lumbar pain was reported in the letter of instructions and none reported by way of history to Mr King." I note, however, that Mr King said that the appellant had had "only minimal symptoms and occasional discomfort in the thoraco-lumbar spine", thus suggesting that some symptoms, at least did exist. Nonetheless, Mr King reported that clinically he had "a normal thoraco-lumbar spine" but noted that on X-ray there was a mild curve which he said he told the appellant was a finding of no clinical significance and "it is causing no symptoms and is not going to cause him any trouble in the future. It is also quite unrelated to his motor car accident". He said that he reassured the appellant that he would be able to manage light carpentry work, notwithstanding his neck complaint.

96. His Honour noted in his reasons that the appellant explained why he had not brought a claim earlier with respect to his back. He said that because Mr King had originally told him that his injury was only to his neck he pursued only that claim against TAC. His Honour then examined the opinions which had been tendered from the medical practitioners, highlighting instances where it was recorded by doctors that there was no apparent damage to the lumbar spine, or else highlighting the omission of any reference to a lumbar spine injury. However, his Honour also noted some medical evidence that favoured the appellant and, after reviewing the evidence, his Honour accepted that the appellant had no back symptoms prior to the accident and that there was no factor other than the accident that could have caused back injury. His Honour held that "despite the views expressed by (orthopaedic surgeon) Mr Miller, I accept (the appellant's) evidence that this accident has caused injury to his back".

"Whether that injury is muscular pain or whether it has brought on symptoms related to a previously asymptomatic constitutional condition, I am unsure. However, I find having considered all the evidence that there is a causal connection between the motor vehicle accident and the lumbar injury."

104. Having resolved the causation question in favour of the appellant his Honour then considered the question of serious injury, noting the decisions of this Court in Humphries v. Poljak[6], Cropp v. TAC[7] and Angeletos v. Museum of Victoria[8]. His Honour then said that accepting that there was a causal link between the accident and the back injury:

"As best as I can classify the injury to the back, it appears to be a soft tissue injury with pain emanating therefrom. That pain comes about as a result of soft tissue injury to the musculature of the spine or alternatively as a result of exacerbation of a previously asymptomatic condition related to the three level degeneration shown on the MRI scan."[9]

108. His Honour then discussed the complaints as to the intensity of the pain which had been reported by the appellant, noting that when he saw Mr King in February 1999 the back symptoms were then "minimal" and that in late 1999 when he appeared before VCAT the major problem about which he complained was his neck and adding that "he has neither sought rehabilitation or pain management as to the lumbar spine since that time".[10] His Honour then referred to medical reports of Mr King of June 1998 and of Mr Turner: the latter's diagnosis, as his Honour said, "is of muscular pain".

111. Having noted that the test in Humphries v. Poljak would not necessarily preclude soft tissue injury amounting to a serious injury, his Honour then said:

"However, having analysed the circumstances in this case, having in particular taken into account the lengthy delay before these symptoms appeared and taking into account the particular circumstances as to the injury to the neck and having taken into account the medical evidence, in particular that of Mr King, Mr Turner and Mr Miller, I accept such opinions as against that of Mr Wilde. I do not find that there is any ongoing discal damage which has been caused as a result of this accident and in the circumstances I am not satisfied that as a result of this incident which caused and led to the development of this lumbar soft tissue muscular injury - that the circumstances and consequences of such injury either by way of pain and suffering and loss of enjoyment of life or by way of pecuniary disadvantage are such which meet the test which a plaintiff is required to meet pursuant to the provisions of law that I have detailed."

115. It is not clear why it was - having only shortly before in his reasons expressed uncertainty as to whether the lumbar pain was due, on the one hand, to soft tissue injury to the muscles of the spine or, on the other hand, was an exacerbation of a previously asymptomatic degenerative condition in the spine - that his Honour concluded that it was a soft tissue muscular injury when considering the question of serious injury. No explanation was given why the alternative explanation was rejected. Furthermore, if it was the case that the back pain had been occasioned by the motor vehicle accident, as his Honour held to be the case, it is not clear, with respect, why his Honour was of the view that a lumbar soft tissue injury which was continuing to cause pain in the back so many years after the accident did not, in this case, constitute a serious injury.[11] The findings made by the judge as to the circumstances of the accident were not inconsistent with it having caused serious injury. His Honour found that the appellant "was involved in a severe head-on collision" and he added that he "was subjected to severe impact as a result of this accident".

118. Furthermore, his Honour's reasons do not elaborate on his reasons for rejecting the contention that "the circumstances and consequences" of the soft tissue injury "either by way of pain and suffering and loss of enjoyment of life" or "by way of pecuniary disadvantage" fail to constitute it a serious injury. There is no finding as to what consequences did flow from the injury or as to what, if any, financial consequences flowed. Give that the appellant, a young man, had been out of work since the accident and that he attributed that, at least in part, to the back injury (although for the first two years the neck injury seems to have been the more immediate cause) the omission of such findings is serious. More importantly, the conclusion that the lumbar injury did not have serious consequences for his ability to work is at odds with the opinions of some of those doctors on whom the judge said he relied. I turn, then, to that evidence.

121. His Honour said that he relied on the opinions of Mr King, Mr Turner and Mr Miller, as against the opinion of Mr Wilde and an examination of the reports from those doctors illustrates the difficulties which the Court faces in the absence of clear findings.

124. I have earlier set out some of the evidence contained in the reports of Mr King. He was of the opinion that the appellant had suffered a neck injury in the accident, and not, additionally a back injury. His Honour, however, rejected that conclusion, and held that he had, indeed, also suffered a back injury. In his report of 11 June 1998 Mr King said (speaking of what he called "the cervical spine injury") that the appellant had been left with a chronic disability of mild to moderate severity with an overall loss of cervical function of 15% to 20%. He said: "Taking into account the heavy nature of his work as a construction carpenter this did represent a significant disability in an otherwise fit, active and healthy young man and could be classified , in this respect, as a `serious injury'". In his report of 26 February 1999 in which he clearly rejected the suggestion of there having been a back injury caused by the accident (and which conclusion was rejected by the judge) Mr King said that the appellant then had "some mild stiffness and discomfort in his neck, consistent with his original injury to the neck", and said those symptoms were slowly improving and that he would be able to manage light carpentry work.

127. Although the judge did not explain what opinion it was of Mr King on which he relied for his conclusion that this was not a serious back injury, in the last of his reports Mr King stated that there were "minimal symptoms and occasional discomfort in the thoraco-lumbar spine". In the absence of a specific finding it may be presumed that his Honour concluded that if the complaints described by Mr King were not so severe as to preclude light carpentry work then even if they were in whole or in part due to a back injury (which his Honour, contrary to Mr King's opinion, held had also been suffered), the back injury could not itself have been serious or an impediment to such work.

130. Mr Turner was also an orthopaedic surgeon. In his report of 15 February 2002 he concluded that the CT scan showed "minimal disc bulging in the lower lumbar spine at both L4-5 and L5-S1 levels". He concluded that although he regarded the injury as being "predominantly muscular in origin", rather than discal, the motor car accident "has been a significant contributing factor to the initiation and ongoing persistence of the pain in Mr Richards' back". He added:

"Mr Richards has now been unable to work because of his ongoing pain for approximately five years and a return to work is most unlikely to be possible unless there was a significant and sustained improvement in the pain in the back. As this seems unlikely at this late point in time, I would be most pessimistic about Mr Richard's ability to return to the workforce in the future".

134. That pessimistic prognosis was not altered in his opinion dated 5 May 2002, although once again Mr Turner said that the back pain was muscular in origin. He said that surgical treatment was unlikely to improve the appellant's symptoms and recommended "very strongly" that he not pursue such treatment.

137. The third doctor on whom the judge relied for his conclusion that the back condition was not a serious injury was Mr Miller, an orthopaedic surgeon. In his report of 25 October 1998 he diagnosed that the appellant had suffered a musculo-ligamentous strain to the cervical spine, but in his report of 24 August 2002 he noted complaints as to lumbar pain. Upon examination, he concluded that there was no neurological deficit of the thoraco-lumbar spine. However, he observed:

"He reports symptoms in the lumbar spine. These are likely to be due to disc degenerative disease and I note this is identified on MRI scan. The symptoms are likely to remain at approximately the current level. The prognosis is only fair".

141. Upon referring to the report of Mr King (which denied that lumbar injury had occurred) he concluded that if Mr King's observations were correct then the lumbar pain was probably due to early signs of degenerative disc disease, and thus the motor vehicle accident was unlikely to have significantly contributed to his back condition. However, given his Honour's rejection of that conclusion, Mr Miller's opinion as to the appellant's capacity for work is significant. Mr Miller said: "He will have difficulty with work as a carpenter. I believe this relates primarily to his thoraco-lumbar spine and believe on the balance of probabilities that this is not related to the motor vehicle accident".

144. As may be seen, once it is accepted that the back condition was related to the accident then the consequences of the back condition can not readily be dismissed as less than serious. That is so when regard is had to the opinions of the medical practitioners on whom the judge said he relied. The situation would be even more clear were regard had to the opinions of Dr Wilde, whose opinions his Honour said he did not prefer.

147. The orthopaedic surgeon, Mr Wilde, whose opinion was expressly not preferred, said in his report dated 12 September 2002 that the back condition was due to the accident and that the symptoms might either reflect the onset of symptoms of what had been an asymptomatic degenerative lumbar spine disc disease or else the accident might have caused further disc derangement. He concluded that the back condition was a permanent impairment, that the appellant's prognosis was poor, and that the disc injuries in the lumbar spine would get "significantly worse in the fullness of time".

150. In his earlier report of 10 June 2002 Mr Wilde had said that the appellant did not exaggerate his complaints and that the disc damage to his lumbar spine produced a poor prognosis which meant that he would have to modify his personal and work activities and that he was not fit to return to his full time work as a carpenter or to perform other forms of physical or manual work. His Honour, it seems, rejected those opinions, but given that his Honour must have accepted his conclusion that the back injury was related to the accident, then it is not clear why Mr Wilde's prognosis concerning the back condition was rejected by his Honour.

153. As I shall next discuss, a judge hearing such an application is not obliged in his or her reasons to deal exhaustively with the evidence. As Tadgell, J.A. noted in Giannakopoulos v. Melwire Pty. Ltd.[12], a judge is required to pass upon elements of fact and of degree and to make a value judgment. It can not be required that the evidence be the subject of exhaustive analysis in the reasons. However, the reasons must be such that the material facts which have been found and the steps in the reasoning process which lead to the conclusion reached must be clear to the reader[13]. In my opinion, it is not clear what findings his Honour made. Did the appellant suffer musculature damage which was still causing pain and disability so many years after the accident? Was that pain and discomfort the cause of his inability to perform his work as a carpenter? If the answers to those questions were as sought by the appellant then it must be arguable that the injury did constitute a serious injury for the purposes of the Act. The reasons fail to clearly address these questions.

156. The test in determining whether "serious injury" has been established is to be found in the decisions of the Court in Mobilio v. Balliotis & Ors[14] and Humphreys & Anor v. Poljak[15]. The Court would not interfere with a judge's determination under s.93(4) in the absence of specific error being shown unless it was satisfied that the determination was plainly wrong or wholly erroneous. The test as stated in Humphreys v. Poljak was confirmed in Mobilio in the terms stated by Crockett and Southwell, JJ.[16] as follows:

"He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think `long-term' is not an expression likely to give rise to difficulties. 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. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of the range of applications including those the adjudication of which is now our responsibility."

160. As Tadgell, J.A. observed in Giannakopoulos v. Melwire Pty. Ltd. & Anor[17], in dealing with a ground of appeal asserting that the judgment was against the evidence and the weight of the evidence:

"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."

164. His Honour summarized the test arising after Mobilio as being that an appellate court would not interfere in a case such as this "unless the decision below appears on its face to be patently unsustainable".

167. Mr Middleton submitted that in considering whether error has been shown the Court should assess the evidence upon the basis most favourable to the respondent. He cited for that proposition a number of cases concerning challenges on appeal to jury verdicts[18]. Whether that be the correct approach on an appeal such as this, I need not decide. Even assuming the principle be correct, in my opinion the difficulty in this case is that it can not be said with confidence what findings of fact were made, nor can one confidently determine what alternative findings were considered and excluded.

170. Putting to one side the discrete ground concerning the adequacy of the reasons, in my view this appeal must succeed, in any event, on the basis that although the onus is on the appellant to demonstrate that the decision of the judge was tainted by error it can not be otherwise when, without explanation, the evidence of witnesses on whom the judge relied for his decision is, on significant issues, apparently inconsistent with the conclusion reached.

174. In Nichols and TAC v. Robinson[19], Winneke, P. discussed the question of the extent of reasons required in a judgment on a serious injury application. The President observed that on such applications the judge would probably 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." Winneke, P. noted that the material before a judge on such an application is necessarily limited and is 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." The learned President cited a passage from a judgment of Chernov, J.A. in Barlow & Anor v. Hollis[20] in which his Honour said:

"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."

178. Winneke, P. continued in Nichols[21]:

"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. 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. 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. 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." (Footnotes omitted.)

182. I appreciate that the task set for judges in hearing such applications is a difficult one. In the first place, the judge does not have the benefit of hearing oral evidence from all witnesses and the volume of such cases also requires that judges deal with the applications expeditiously, without the luxury of reserving judgment for the length of time that the Court of Appeal might allow itself. In the present case those problems were exacerbated by the fact that the judge did not see the medical reports before the hearing commenced and further, by the fact that the applicant was unrepresented. Thus, his Honour did not have the benefit of an address by counsel for the appellant. I have no doubt that without those disadvantages his Honour, in what was otherwise a lengthy and careful judgment, would have identified the omissions to which I have referred and would have addressed them.

185. In my opinion, however, whilst recognising the difficulties which confronted the judge, the reasons in this case do not enable the Court on appeal to ascertain the reasoning upon which the decision was based with the precision that is required, and that, in my view constitutes error of a kind which must cause the decision to be set aside.

189. In the appellant's written outline of submissions, as expanded by him in the course of oral submissions, he complained that the judge had not permitted him to file affidavits from his mother and grandparents in support of his contention that he had complained of lumbar pain at any early stage. The affidavit from his mother, Loredana Richards, deposed that after the accident "My son did tell me that his back had been injured due to symptoms he felt. To the best of my recollection this was told to me shortly afterwards, within three months after the accident." She confirmed, too, that her parents had purchased a new bed for her son "as a result of back pain". An affidavit signed jointly by Emilia Eranca and Ezio Eranca, the grandparents of the appellant, asserted that they purchased a new mattress and base for the appellant "as a result of his complaints of back pain". They added that their recollection was that it was purchased within ten months after the accident and they exhibited a receipt for another item which they said was purchased at the same time in the same store, and which was dated within ten months of the motor vehicle accident. When the appellant first sought to tender those affidavits, on 19 November 2002, the following exchange occurred:

"HIS HONOUR: No, I don't see that's going to help you. MR RICHARDS: Well, she does confirm that soon after the car accident I did realize something was wrong with the lumbar injury and I started getting ... HIS HONOUR: At the end though she doesn't say `lumbar' she says `back'. MR RICHARDS: Well, which is - that's right. HIS HONOUR: Your back from your - I don't (sic) it tells you that much about your lumbar, does it? MR RICHARDS: Well, it's meant to refer to the lumbar, Your Honour and I think ... HIS HONOUR: But it doesn't. MR RICHARDS: Well, I'll write up a new one then. HIS HONOUR: I don't think you get time to file any more affidavits. MR RICHARDS: Can I do one tomorrow? I could have one done tonight and put it in tomorrow. HIS HONOUR: Well, let's see how we go. I don't think your grandparents are going to help you much either, really. We'll try and do all the medicals together. All the medicals continue now, do they? Is that right?

193. The next day, at the conclusion of the cross-examination of the appellant, his Honour asked whether he wished to lead anything further in evidence. The appellant said he would probably need time to consider that, and his Honour said that there was no more time available and asked whether there was anything that he wanted to put in that he had not already put in. The following exchange took place:

"MR RICHARDS: Would you at least consider the affidavits from mother and grandparents? HIS HONOUR: No, I don't think they're going to help you much. You've basically explained that. They don't say anything. The issue is, what was your back like at the time and you've really answered that. MR RICHARDS: Okay. For the time being I think I'll just rest, Your Honour. HIS HONOUR: Okay, well that's the plaintiff's case closed."

197. It is apparent that, although not expressed in precisely those terms, the appellant had sought to tender the affidavits and his application to do so was refused by his Honour. No ground of appeal complained about that refusal, but counsel for the respondent said that no point would be taken about the absence of the ground of appeal, in that respect, if the Court considered that it was a matter which it ought to consider.

200. It is clear from his Honour's reasons that a central issue in the case was the question of the delay in complaint as to lumbar pain. In his affidavit in support of his application, the appellant claimed that he had first felt lumbar pain within three months of the accident and he was closely cross-examined about that assertion and agreed that it was more likely to have been within the first six months that he noticed lumbar pain. He was cross-examined extensively about his failure to complain about lumbar pain to medical practitioners and his Honour in reviewing the medical evidence noted any failure to report back problems in the early stages of his consultations and treatment. The appellant's failure to state in his note to Mr King that he had lumbar pain was specifically highlighted by his Honour, as was the explanation given for the failure to make complaint at that time. After dealing with the evidence and noting, in particular, failures of the appellant to report symptoms of back pain to some doctors, his Honour then stated his conclusion on the issue of causation of the lumbar pain and said this:

"The plaintiff gave evidence and was cross-examined strongly in that regard. It is clear, I think, that his affidavit does present the case far higher than facts which show it to be in so far as his symptomology within six months of the accident and thereafter. However, I do accept his evidence that there was by way of his background no other factor which could have caused back injury and despite the views as expressed by Mr Miller, I accept his evidence that this accident has caused injury to his back."

When his Honour then discussed the seriousness of that injury, he turned to the cross-examination of the appellant as to the extent of the pain that he had experienced and in his conclusion the following passage appears:

"However, having analysed the circumstances in this case, having in particular taken into account the lengthy delay before the symptoms appeared and taking into account the particular circumstances as to the injury to the neck ..."

206. His Honour's reasons do not contain a finding as to whether the appellant did experience back pain within the first six months of his accident. The "delay" to which his Honour refers in the onset of the symptoms is not more precisely described. The appellant contends that a relevant issue was whether or not he had made any complaint about lumbar pain to anyone in the period leading up to his consultation with Mr King, an important question given that so much emphasis was placed on the fact that Mr King recorded that there were no complaints (apparently) about any lumbar condition.

209. Mr Middleton submitted that the affidavits could have had no real bearing on the outcome and, in any event, it was not clear that the matters stated within them had been rejected by the judge. In my opinion, that uncertainty merely demonstrates why it is not unreasonable that the appellant might feel that he was denied an opportunity to place evidence before the Court relevant to the question of complaint by him concerning his lumbar condition. In my opinion, his Honour ought to have received the affidavits which the appellant sought to tender and ought to have made a specific finding as to the onset of his back symptoms and the delay in making complaint.

212. Absent the complaints made in the other grounds of appeal, however, the failure of the judge to have received the affidavit material would not, I believe, have been of themselves sufficient to constitute error causing the Court to set aside the decision, but it highlights the difficulty which the Court faces in the absence of clear findings of fact made by his Honour in his reasons.

216. The question whether an applicant requires leave to appeal when challenging a judge's refusal to declare that he had suffered serious injury was left open in Cowden v. TAC &Anor[22]. No point was taken by counsel for the respondent in this case as to that issue. It is, once again, unnecessary to resolve the question. If leave be required in this case then leave should be granted and the appeal be treated as having been heard instanter.

219. In my opinion, the appeal should be allowed, the decision of the judge be set aside and the matter be remitted to the County court to be re-heard, by another judge of that court.

[1] Nichols v. Robinson [2001] VSCA 11 at [14] per Winneke, P.

[2] Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Harmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154 at 163-4 per Malcolm, C.J.; Stojkovski v. Fitzgerald [1989] W.A.R. 328.

[3] See, for example, Giannakopoulos v. Melwire Pty. Ltd. & Anor [2000] VSCA 153, at [6], per Tadgell, J.A.

[4] His Honour, in his reasons, at T152, incorrectly dates this report, but counsel for the respondent agreed with the appellant that his Honour was intending to refer to the report of 26 February, 1999.

[6] [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

[7] [1998] 3 V.R. 357.

[8] [1999] VSCA 129; [1999] 3 V.R. 157.

[9] An MRI scan reported on 24 April 2002 "Three level (T11/12, L4/5 and L5/S1) disc degeneration. No focal disc protrusion is seen."

[10] The appellant complained that this finding was unreasonable because, as he had explained to the judge, TAC had refused to pay for such treatment and he could not afford to pay for it himself. It is unnecessary to deal further with this issue given the conclusions I have reached as to the outcome of the appeal.

[11] I do not, of course, suggest that these findings must have constituted a serious injury.

[12] [2000] VSCA 153, at [7].

[13] Barlow & Anor v. Hollis [2000] VSCA 26, at [16] per Chernov, J.A.

[14] [1998] 3 V.R. 833.

[15] [1992] VicRp 58; [1992] 2 V.R. 129.

[17] [2000] VSCA 153 at [6]- [7].

[18] Zoukra v. Lowenstern (1958) V.R. 584, at 595; Carlin v. Greater Union Organisation Pty. Ltd. [1991] HCA 23; (1991) 173 C.L.R. 33, at 42; Liftronic Pty. Ltd. v. Unver (2001) 75 ALJR 867, at [30], per McHugh, J.

[19] [2001] VSCA 11 at [14].

[20] [2000] VSCA 26 at [16].

[22] [2003] VSCA 198.