29 The reason why it was unnecessary for the Chief Justice to determine the correctness of Matthews was that his Honour disagreed with Meagher JA in his understanding of the evidence given at trial. The Chief Justice read the psychiatrists' reports as capable of indicating that significant impairment continued to the date of trial. In these circumstances the Chief Justice decided that a new trial was warranted.
30 Beazley JA expressed her agreement with the construction given to s79 by Meagher JA. However, she agreed with the reasons of the Chief Justice which led to the allowing of the appeal, and the ordering of a new trial.
31 The headnote in the MVR report of Reinhardt states that Matthews was disapproved. This is a debatable proposition. I prefer the analysis of Priestley and Powell JJA in England v Van Donk (1997) 26 MVR 289: see at 290 per Priestley JA, 295 per Powell JA. The view there expressed is that the reasoning that was dispositive of the outcome of the appeal in Reinhardt, according to the majority judgments in that case, was obiter in its critical discussion of Matthews. See Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314.
32 Between the hearing and disposition of Reinhardt came the hearing and decision of Allen on 1 July 1996 by a court comprised of Clarke, Handley and Cole JJA. In Allen, Matthews was approved in circumstances where the issue was clearly central to the reasoning of the Court. Allen involved a 1991 motor vehicle accident that came to trial in 1995 in the District Court. There was a finding of negligence and damages were assessed, but these did not include damages for non-economic loss because the trial judge had held that the plaintiff had not established within the meaning of s79 that his ability to lead a normal life was, at the date of trial, significantly impaired by the injuries suffered in the accident. Matthews was applied. I have had the opportunity of reading the transcript of argument in the appeal. Counsel for the appellant squarely challenged the correctness of Matthews. Unfortunately, he had given no notice of his intention to do so in his written outline of submissions. Nevertheless, the transcript reveals a full canvassing of the issues surrounding the correctness of Grove J's interpretation of s79(1). The Court was referred to the apparent endorsement of Matthews in Southgate at 440-1; to the 1993 Act with its explanatory note and non-retrospective transitional provision; and to textual and purposive arguments challenging the correctness of Matthews.
33 However, the appellant's attack on Matthews was rejected. The leading judgment was given by Clarke JA. His Honour did not regard the 1993 Act as relevant to the correctness of Matthews, because the amendment of s79(1) was prospective. He then addressed the textual arguments in the following terms (at 257):
Certainly the Court may and, perhaps, should adopt a purposive approach, but that does not justify the Court substituting words for the words actually used in the statute except in particular well known circumstances.
There is nothing in s79 which would justify, in my opinion, interpreting "is" as meaning "has been, is or will be". To give it that interpretation would be to rewrite the section which is a power that the Court does not enjoy.
In my opinion there is no substance in the argument that what has occurred since 1991 justifies a review of Matthews v Dean.
The second argument was based upon the word "injury" in the latter part of s79. It was pointed out that the concept was not of significant impairment by disability, but by injury, and, as this must have occurred at the time of the accident, the section must have contemplated past impairment. The difficulty with the submission is that the section prohibits a Court from awarding damages unless the injured person's ability to lead a normal life IS significantly impaired. (my emphasis)
In my opinion Grove J was correct to place emphasis on the tense of the verb and to conclude that the enquiry posed by the section was whether there was significant impairment at the date of trial. No doubt there is an arbitrary element in the application of that test but the Court is bound to apply the test which flows from the proper construction of the section and cannot decline to do so simply because the results may not always be thought to be just.
In my view Grove J was right and this Court should continue to approach the old s79 on the basis that his interpretation is a correct one. Accordingly the new ground which was added during the oral hearing is rejected.
Handley and Cole JJA agreed.
34 The reserved judgment in Reinhardt was handed down 11 days later. It is apparent that the ex tempore judgment in Allen had not by then been corrected and circulated.
35 The matter returned to the Court of Appeal in England v Van Donk which was heard on 14 November 1997 and decided on 5 December 1997. England concerned a 1993 motor vehicle accident which came to trial in the District Court in June 1997. The trial judge had found that the plaintiff's disability had ceased some time prior to the trial and accordingly declined to make any award in respect of non-economic loss. The appeal was allowed, but (according to the majority) on a basis that did not involve any overturning of Matthews or revisiting of Allen.
36 It is convenient to refer first to the judgment of Stein JA, whose views on the presently critical point were in the minority. It is not clear whether his Honour regarded the remarks in Reinhardt as obiter. But what is clear is that Stein JA endorsed them, and in firm tones which encapsulate the argument against the correctness of Matthews. He said (at 301-302):
It is clear that a literal construction of s79(1) has the capacity to cause manifest injustice to a large number of people injured in motor vehicle accidents. In particular, those people whose ability to lead a normal life is significantly impaired by the injury suffered in an accident, but by the time of the trial are not suffering significant impairment, will be excluded from compensation for non-economic loss. This, of course, is relevant to accidents which occurred prior to 26 September 1995.
As Gleeson CJ observed, the temporal construction would produce the surprising result that a plaintiff's rights can depend on the length of delays in court lists. This is something which is totally out of the control of a plaintiff. In addition, a plaintiff through illness, or unavailability of a witness, may obtain an adjournment of a trial thereby possibly depriving herself (or himself) of damages. Moreover, a defendant could seek to delay the trial in the hope or belief that by the time the hearing ultimately occurs, the plaintiff will have ceased to be significantly impaired.
To my mind, the literal construction has the capacity to lead to absurdity and overwhelming unfairness. It could not have been the intention of the legislature. In my opinion, the alternative construction, afforded by a purposive approach, is to be preferred. I agree with Meagher JA in Reinhardt that 'is' in s79(1) should be given a narrative and not a temporal connotation. Such an approach is more likely to accord with Parliament's intention. To receive any damages for non-economic loss, there has to be proven that the injury suffered in the accident has significantly impaired the plaintiff's ability to lead a normal life, whether that impairment was past or present.
It follows from my conclusion that I believe that Matthews v Dean was incorrectly decided on this point and the correct construction is that opined by Meagher JA (Beazley JA agreeing) in Reinhardt.