66 Counsel for Shock Records submit that the reasoning in these paragraphs is wholly inadequate, ignores vital evidence and does not amount to sufficient reasons for decision at all. It is wholly inadequate because the judge failed to disentangle the various causes of Mr Jones's loss of earning capacity, which the serious injury test required her to do. It ignores vital evidence because it fails to take into account a body of evidence about Mr Jones's fitness to do a variety of paid jobs. It does not amount to sufficient reasons for decision because, among other things, it does not show how the judge's decision with respect to Mr Jones's loss of earning capacity was arrived at. As will be apparent, these criticisms are interconnected.
67 Counsel for Shock Records made a foundation submission that the judge was obliged to disentangle the various causes of Mr Jones's incapacity to work or, more accurately in this context, his loss of earnings of 40 per centum or more. They put the same submission another way - the judge was required to strip away the non-work causes to lay the work causes bare.
68 While "disentangle" and "strip away" may be useful short-hand, this language does not strictly describe what the serious injury test required the judge to do.
69 When we earlier looked at the provisions of the Accident Compensation Act governing the serious injury test, we saw that s. 134AB(38)(e) required the judge to determine whether Mr Jones's loss of earning capacity was "40 per centum or more". Taken together with the other elements of the test, this required her Honour to be satisfied that, among other things, Mr Jones's back injury of itself caused a loss of earning capacity of this degree, which required her to exclude the contribution of the other medical conditions and, of course, the psychiatric or psychological consequences of the back injury.
70 A judge is quite capable of making such a determination once he or she has reached the point of being properly satisfied that the plaintiff's injury is enough in itself to cause a loss of earnings capacity of 40 per centum or more. How much disentangling or stripping away is necessary to reach that point will depend upon the circumstances of the given case. If the submissions of counsel for Shock Records mean that, even after reaching that point, a judge still has to identify and quantify all of the other potential causes, I cannot agree with it.
71 In the factual circumstances of this case, however, the judge did have to do some disentangling. Mr Jones suffered from three medical conditions of which only the back condition was injury-related. Her Honour had to be satisfied this condition caused a loss of earning capacity of 40 per centum or more. There was competing medical evidence. A number of the doctors were of the view Mr Jones could perform work of a limited nature. Some were of the view his depression or psoriatic arthritis substantially contributed to his incapacity for work. Mr Jones himself gave evidence his incapacity to work was due to a combination of events - severe back and radiating leg pain, psoriatic arthritis and being "a little lost psychologically".
72 Her Honour's reasons for decision reveal that she engaged in sufficient disentangling to enable the statutory determination to be made.
73 The necessary context to paragraph 52 is the discussion in the immediately preceding paragraphs which contains the judge's conclusion that Mr Jones's back injury was so severe as to satisfy the other elements of the serious injury test. Therefore, when reading paragraph 52, we have to bear in mind that her Honour had already decided to accept the evidence of the treating doctors, which, correctly, she saw as decisive on that point.
74 The treating doctors did not just state that Mr Jones was suffering from a work-related back injury. They stated he had an incapacity for work. As I have noted, Mr Schofield said he was unfit for his previous work but "hopefully", with retraining, could obtain "a measure of employment in a much lighter industry..." You will note the extremely guarded tone of language. Dr Stockman agreed, saying Mr Jones could not "undertake any job which requires sitting for prolonged periods of time...bending or lifting weights more than 5kg..." As I have also noted, their view was that the incapacity arose mainly from the back injury, not the depression or the arthritic psoriasis. The one thing - the incapacity - followed the other - the back injury.
75 Against this background, which was set out in the reasons for decision, her Honour examined the loss of earning capacity component of the test.
76 Paragraph 52 considers this component in terms of Mr Jones's capacity for suitable employment, his unsuccessful attempts to rehabilitate "in the face of the chronic pain condition he currently suffers from" and the "nebulous" possibility he had of obtaining home-based employment. The judge did not expressly state that it was the back injury, and not the depression or the arthritic psoriasis, which was mainly limiting Mr Jones's earning capacity. It would have been better for her Honour to have done so, for it was an important part of the reasoning process required by the serious injury test. Nonetheless I think it is definitely implicit. The judge was dealing in this paragraph with the consequences for Mr Jones's earning capacity of the back injury she had found to be the main cause of his incapacitating symptoms.
77 Also definitely implicit in paragraph 52 is her Honour's satisfaction that the back injury was sufficient in itself to prevent Mr Jones from earning more than 60 per centum of his pre-injury earnings. This satisfaction is implicit in the reference to Mr Jones's "chronic pain condition", which calls up the opinions of the treating doctors that, by reason mainly of the back injury, Mr Jones was suited for a very limited range of work, and to her reference to the unlikelihood of Mr Jones being able to earn "some sort of income" from home-based employment, which calls up Dr Stockman's opinion that Mr Jones could not do work that required prolonged sitting.
78 I think, as the judge saw it, once the back pain was found to arise from the work injury, it was obvious, because the pain was so severe, that the major contributor to Mr Jones's loss of earnings capacity was the work injury. Having reached that point, her Honour felt there was no need to quantify the contribution of the other minor causes. No more "disentangling" or "stripping away", to use the words of counsel for Shock Records, needed to be done. For the reasons I gave earlier, there was nothing wrong with this approach. And I see the case in the same way.
79 With some justification, counsel for Shock Records criticise the judge's reasons for decision for failing to deal with the evidence concerning Mr Jones's capacity for work.
80 As with the evidence concerning the nature of, and the pain caused by, his back injury, there was range of evidence on his capacity for work. This evidence included a number of vocational assessment reports. These reports identified various suitable alternative employment options for Mr Jones, including sales clerk, car park attendant and computer-based employment.
81 It is clear enough from the reasons for decision that the judge considered the recent evidence of the treating doctors to be decisive, not just in relation to the nature of and pain caused by Mr Jones's back injury, but also in relation to his limited capacity for work. I think her Honour was correct to adopt this approach. The early evidence on Mr Jones's work capacity was strongly coloured by the debate over the mechanical verus the psychological causes of Mr Jones's back pain. Once this debate was resolved by the treating doctors in his favour, it could not, compared with their evidence, be of much use.
82 The judge did not expressly say so, but the vocational evidence could not stand with her findings in relation to Mr Jones's back condition. All of the suggested jobs possibly required him to sit for prolonged periods, which, on those findings, he plainly could not do.
83 Counsel for Shock Records submitted the judge was obliged to provide adequate reasons for decision.[3] They submitted her Honour's reasons were not adequate. The reasons did not show how the finding of a serious injury with respect to loss of earning capacity was arrived at. They did not show how the plaintiff discharged the onus of proof applicable to him, how the relevant statutory provisions were satisfied and by reference to what evidentiary material.
84 The obligation of the judge to provide adequate reasons for decision is both entrenched in the common law and specifically imposed by s. 134AE of the Accident Compensation Act. Under that section, the judge must give "detailed reasons which are as extensive and complete as the court would give on the trial of the action." A failure to do so would amount to an error of law that might itself be a ground for upholding an appeal.
85 In my view the reasons for decision of the judge are beyond criticism except that, on the loss of earnings component of the serious injury test, they do not make the path of reasoning explicit in the respects I have mentioned. But reasons for decision have to read fairly and particular parts have to be read in the context of the reasons as a whole.[4] When I so read the reasons for decision in the present case, I see, in the relevant respects, a definitely implicit path of reasoning, and I therefore conclude that they are adequate.
86 I must therefore reject the submissions of counsel for Shock Records that the judge incorrectly found that Mr Jones did not have a demonstrated loss of earnings capacity of 40 per centum or more.