State of Victoria v Glover [1998] VSCA 93

7. The appellant has, pursuant to leave, appealed to this Court against an order of the County Court granting leave to the respondent to bring proceedings against it for common law damages, pursuant to s.135(4)(b) of the Accident Compensation Act 1985 ("the Act").

10. Those proceedings are sought to be instituted by the respondent for negligence arising out of an injury suffered by him on 31 August 1994 in the course of his employment with the Victoria Police Force whereby, so he alleges, he injured his back while loading radio equipment into the back of a utility van. He says that he experienced pain in the low back, which at first, though not severe, was persistent and which led the next morning to both back pain and pain radiating to his legs. Those pains persisted and, after seeing his local doctor, he had a CT scan and then was referred to a specialist neurosurgeon, Mr Andrew Kaye, for opinion. After a further CT scan and a myelogram, Professor Kaye formed the opinion, which has not been since disputed, that the respondent had suffered a broad-based disc bulge at L 4/5 level, with moderate canal stenosis and some nerve root entrapment.

13. In consequence, the applicant has found it necessary to give up his former work as a police radio technician, in the course of which he suffered the original injury, and has returned to the police working as a phone and radio operator, as I would understand it, unable otherwise to perform operational duties in the police force. Those circumstances, and the effect of the impairment of his back on his family and personal life, led the respondent to seek damages for the injury he says he had suffered. He sought the required determinations from the authorised insurer pursuant to sub-ss.(3) and (4)(a) of s.135 of the Act. Upon being refused a certificate under sub-s.(4)(a) by the insurer, he sought leave to bring proceedings against the appellant upon the basis that he had suffered a serious injury within the meaning of the Act, and relied for this purpose on paragraph (a) of the definition contained in sub-s.(19) of s.135; that is, he relied on the fact that he had suffered a serious long term impairment of a body function, in this case, that of the use of his back.

16. It is convenient at this stage to refer to the findings made by the learned judge, although in two minor respects the appellant contended that the judge had made erroneous factual findings. It should be noted that those errors were not specifically relied upon in the notice of appeal. They were used as a basis for the grounds upon which the present appeal is brought and to which reference will be made later.

19. Because the economic effect on the respondent, and the likely future economic effect, has not yet been so great in as much as he has been able to hold down his job as a radio operator in the police force, I shall deal first with such effects on the respondent's personal life as would be relevant, in particular, to any claim for pain and suffering and the like.

22. Before dealing with that, it should be noted that the learned judge found as a fact that the applicant did suffer a back injury which resulted in a disc prolapse of the type described by Professor Kaye, and that prolapse was associated with some spinal canal stenosis, the latter condition resulting from degenerative changes.

25. The judge referred to the fact that the applicant, in his affidavit and in the evidence generally, detailed the way in which the back injury had impacted on his enjoyment of life. The respondent was greatly restricted in the activities he could perform in his daily home life. He could assist in performing some housework; he was restricted to light gardening but could not mow the lawn. He said he was unable to continue with improvements to the house which he had helped to build to its present stage. The respondent alleged that he could not drive long distances without increased pain, he could no longer play golf and his social activities were generally restricted.

28. It is significant to note in this respect, as the judge pointed out, that the respondent was supported by the evidence of his wife, whose evidence was only lightly criticized. The judge said that whilst Mr Clark, as counsel for the respondents to the original application, questioned the applicant about those matters, he did not understand him to question seriously that the particular back injury suffered by the applicant has had implications for the applicant's enjoyment of life in the areas referred to in his affidavit. He did mention that the applicant, that is the present respondent, had conceded that he used garden implements, such as a whipper-snipper, and was able to effect some minor repairs to his house; that he likewise conceded that he did some light gardening and, although it is not easy to see why it was a concession, that he now regularly attends classes at a Bendigo college in order to learn Mandarin. The judge pointed out that it was conceded that the respondent regularly rode a small motorbike, although I might point out that it seems that his use of the motorbike was because he found sitting in, and in particular driving, a motor car more uncomfortable so far as his back was concerned. The judge pointed out that the respondent had conceded that he cosseted his back and that he avoided activities which might involve strain to it and that he engaged in a regular exercise program to maintain such mobility. However, the judge said that he did not detect in the cross-examination any suggestion that the respondent had been exaggerating when he described his disability and he accepted his evidence on those matters.

31. The judge, in describing the medical evidence, referred to the fact that the respondent's general practitioner had given evidence on a number of matters and had expressed the view that the respondent was not fit to perform work which involved any stress to his back and said that he should not perform any work that involved heavy lifting or working in confined spaces. He referred to the fact that the doctor believed that, if the respondent was not careful or neglected his back exercise program, he was at risk of the condition worsening, which would further restrict his mobility, and there remained the risk that surgery would be required in the future.

34. It was this particular observation, and the judge's acceptance of it at a later point, which provoked counsel on this appeal to say that there was no evidence to support it. Rather, he said that there was a risk that surgery would be required to alleviate the condition or pain which the respondent suffered in his legs, but that such surgery would not be required, so he contended, in order to alleviate his back condition.

37. I cannot, for myself, accept the distinction which has been drawn in the light of the fact that the leg pains were pains which were caused by the original back injury and condition and which might fairly be described as part of the impairment to his back. If the respondent's back was so impaired, then it seems to me that surgery which might relieve the pain, even if that pain be pain radiating to his legs, was still surgery which arose out of a need to deal with the particular impairment.

40. The judge continued by referring to more of the medical evidence and stated that it showed that since February 1995 there had been no further investigation of the applicant's condition or any specialist review, but that he had had, and continued to take, both analgesic and anti-inflammatory pills and also from time to time antidepressant drugs, but that otherwise he had received no specific clinical treatment for almost two years.

43. The judge then repeated his finding that the respondent had suffered a lumbar disc prolapse and said that this had occurred at the age of 40 and on the evidence the injury had produced long term consequences in the form of employment restrictions, loss of income and interference with his social and domestic life in that, in the interests of avoiding exacerbation of damage to the spine, he was required to avoid activities which stressed his lumbar spine. The judge found that those disabilities would continue into the foreseeable future and he made the finding to which I have already made reference that he was at some risk of requiring surgery in the future to his spine.

46. I turn to what the judge also said about the effect of the back impairment on his financial prospects and on the likelihood of future economic loss.

49. The judge reached the conclusion that, by reason of his change of occupation within the police force, the respondent had lost, in effect, something in the range of $2000 to $2500 gross per annum. The judge referred to the respondent's contention that, because promotion was no longer possible within the radio communication section of the police force, the injuries he had suffered prevented him from electing to leave that section to seek promotion in other branches of the police force. He said it was not in dispute that to obtain promotion away from that radio section the respondent would have to be able physically to perform operational duties and to qualify for those duties he would have to undergo a course of further training which included demanding physical training. The respondent had contended that he was no longer fit to complete that training, and that was not in dispute.

52. The judge referred to contentions made on behalf of the appellant and that, notwithstanding the change in the respondent's career and notwithstanding policy changes in the police force whereby only civilians were likely to be appointed in future to the post which the respondent now holds as radio operator, so that he can only hold that job because he has been a serving member of the force for a number of years, nevertheless, so it was argued, that would not have altered the likelihood of the respondent continuing to work solely in the radio communications area.

55. However, the judge pointed out that, though it had been argued that it was significant that the respondent had spent 23 years in the force without demonstrating any ambition to go further, and so, it was said, it was unlikely that he would have done so whether or not he suffered the injury, nevertheless those submissions necessarily involved some speculation. In fact his Honour believed that the contrary contention was correct, that the injuries the subject of the application had denied the respondent the option of employment flexibility, and I see no reason to disagree with that conclusion.

58. The learned judge concluded, therefore, that the current situation of the respondent within the police force was that he was employed as a radio telephone operator, taking and transmitting messages from the base in Bendigo, he retained the rank and pay of a senior constable and that employment was being provided for him on the basis that he had a limited work capacity because of his back condition. The police force would continue to provide him with that suitable employment into the future, so that his employment at senior constable's pay was not at risk.

61. However, on the question of his current loss of income the judge said that the respondent's back was such that it prevented him from taking up duties as an acting sergeant, which he had been able to do from time to time before the accident. He also accepted that the respondent had said that night shift work was available to personnel performing the task that he was currently undertaking, but that his injuries prevented him from working night shifts, which would have entitled him to a penalty loading of some $2000 gross per annum.

64. Consequently, the judge found that in those circumstances the respondent would have had the prospect of having earned an additional $2500 gross per year were he not suffering from his back condition, so that it was appropriate to reach the conclusion that the respondent had a past and ongoing loss of some $2000 to $2500 gross per year, which was a situation not likely to alter in the foreseeable future.

67. The appellant has relied on two grounds upon this appeal, each broken into two sub-grounds, which in themselves may fairly be said to raise the same issues.

70. The first complains that the learned judge erred by failing to apply the appropriate test for a "serious injury" under the Act in as much as, in short, he failed to make a comparison with other cases in the range of possible impairments. The second ground alleges that the judge's finding was, in effect, either not open on the evidence or was against the weight of the evidence.

73. The first ground is difficult to sustain in that the learned judge explicitly referred to the test for determining "serious injury" laid down in Humphries v. Poljak [1992] VicRp 58; [1992] 2 VR 129, as stated by Crockett and Southwell, JJ. at p.140, which was recently confirmed by a bench of five in this Court in Mobilio v. Balliotis, (10 November 1997, as yet unreported): see, for example, per Brooking, J.A. at pp.13-18, in whose reasoning substantially all the members of the Court agreed.

76. In the present case the learned County Court judge quoted the relevant passage from Humphries v. Poljak which may be seen as considered and approved in Mobilio at p.14. That describes the necessary question which should be asked in terms of "a comparison with other cases in the range of possible impairments or losses". Having referred explicitly to that test and then immediately thereafter reaching his conclusion that there was a serious injury, the learned judge can hardly be criticized for failing to ask the correct question unless there was something else in his reasoning which would suggest that he failed to apply the test which he said he was applying. There is certainly nothing directly stated in contradiction in the course of his judgment and there is nothing, in my opinion, in the rest of his reasoning which would support any contention that indirectly he was applying a different test. He referred to the matters which would ordinarily be taken into account on both sides for this purpose and reached his conclusion, as I have said, after citing the relatively brief passage from Humphries v. Poljak. Perhaps his conclusion was expressed in bald terms, but not, in my opinion, in terms which could lead to an inference that he had not made the required comparison and reached a conclusion based upon that comparison. The first ground of appeal, therefore, cannot be sustained.

79. The second ground of appeal appears to pose questions in the wrong terms for an appeal on a question whether an injury has been shown to be a serious injury for the purposes of the Act. In a case of this kind, it is not sufficient to show error in a judge's findings in the terms endorsed by the High Court in respect to civil appeals in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531. The relevant test is that recently laid down by all the members of the Court in Mobilio. In short, the test that, "In this kind of appeal, it is a decision that, in the absence of specific error, the decision will be set aside only if it is plainly wrong or wholly erroneous."; per Phillips, J.A., Mobilio, at p.1.

82. The most detailed examination as to whether or not an injury is a serious injury should be tested in this way on appeal appears in the judgment of Brooking, J.A. at pp.2-13. Although Phillips, J.A. and I preferred not to characterize decisions of this kind as, strictly speaking, discretionary, there was in substance no difference of approach by any of the five members of the Court. The essence of the matter is that in this kind of case, "elements of fact, degree and value judgment are involved", as the High Court said in Fleming v. Hutchison (1992) 66 ALJR 211, on hearing an application for leave to appeal from Humphries v. Poljak. These matters are very much matters for the trial judge, especially where that judge has had the benefit of seeing the witnesses and having heard them cross-examined. In each case, however, a conclusion on this issue involves matters of opinion, impression, speculation to an extent, and estimation, which are matters which the trial judge is best able to resolve. Thus it is only where it can be shown that the judge has reached a wholly erroneous estimate that the judgment should be set aside in the absence of specific error of law or fact.

85. The arguments put to the Court asserted that on the facts it was not open for the judge to have reached the conclusion that he did. I cannot agree. The test to be applied is not one where the Court considers the evidence afresh and, unless there be specific legal or factual error, it must be satisfied that the judge has made or reached a wholly erroneous conclusion. The matters which were raised on this appeal do not convince me that he had done so. The decision is one which is not necessarily one that I would have made myself, but that is not the question. The question is: Has the judge been shown to have reached a plainly wrong conclusion?

88. The argument of the appellant seemed, if I might say so, a little unwilling to come to grips with the difficulties that faced any contention based on any different test. In the end, it was an assertion that, subject to the various matters of factual error, which, as I have said, were in a small compass, it was said to be a case where it was clear that the judge had reached a wrong conclusion. The matter therefore did not, and does not, admit of detailed discussion. Having looked at all the matters raised there were certain aspects of the case which might suggest that perhaps the consequences of this injury were not as severe as in other cases. But, on the other hand, as was pointed out in argument on behalf of the respondent to this appeal, there were equally factors which showed that the respondent's lifestyle had been greatly affected. The position is, I think, confused somewhat by the fact that the respondent may not be able to make out a significant claim in damages in relation to past and future economic loss. For various reasons, the respondent is in the fortunate position of having his job, or a job guaranteed by his present employer, into the foreseeable future. His difficulties only arise if he were to give up that job or if the policy in relation to the employment of members of the police force were to change. It is more than obvious on the evidence that, if he could not be employed as a radio operator or in some sedentary or clerical job, he would have the greatest of difficulty in performing duties as a police officer, at least in operational terms, and any suggestion that he might now act as a sergeant seems to overlook the practical proposition that a person acting in that position must have a greater state of fitness than that possessed by the respondent.

91. Likewise, the argument appears to overlook the lack of flexibility so far as the respondent was concerned in relation to any future employment. Although he is guaranteed a job, as it were, he cannot change that job, and, if he were to seek other employment, then his capacity for doing so and obtaining that employment would be greatly restricted, not only because of the nature of the work he has done in the past but, more importantly, because his injury has impaired his capacity to do different work in the future. In these unusual circumstances his present loss of income, however, is of relatively minor consequence in determining whether there has been impairment of the relevant kind. The impairment may be "serious" although it does not at present result in any substantial loss of income.

94. Furthermore, it is clear from the evidence and from the judge's findings that there has been considerable discomfort caused on a permanent basis to the respondent, the seriousness of which can be easily understood by those who suffer from back injuries.

97. The argument at one stage tended to approach the matter on the basis that this was not the most serious of back injuries; therefore it could not be a serious injury. By the end of argument I think it was conceded that it was a question of making a comparison between the particular injury and impairment and the range of injuries and impairments. If that be so, this impairment to the respondent's back caused him, on the evidence - this will of course have to be tested afresh in the proceedings that he brings - discomfort of a kind which has significantly changed his lifestyle. It was asserted in argument that merely to have to give up golf was of little consequence in that he could take up some new occupation, such as bird watching. This fails, in my opinion, to recognize the fact that at the time of the injury the respondent was relatively young, just into his forties, and enjoyed sport and activities which involved considerable physical exertion, not only heavy gardening, but housework and the construction of his house, which, for various reasons, has not yet been completed. Each of those activities is substantially denied to him, or, if he chooses to participate in any of them, they will cause him, either immediately or shortly thereafter, considerable pain for which he has been constantly taking painkillers and, from time to time, antidepressants.

100. As I have said, it is not for this Court to determine whether or not it would have reached the same conclusion itself upon the same evidence. It is for the appellant to show that the conclusion reached by the learned judge was plainly wrong. I am not satisfied that it has done so.

108. I agree that this appeal must fail. There were in essence two points taken for the appellant. The first was to assert, in effect, that the learned judge, although having taken the trouble at the end of the penultimate paragraph of his reasons to quote verbatim from Humphries v. Poljak [1992] VicRp 58; [1992] 2 VR 129, at 140, the appropriate test of serious long-term impairment of a body function, proceeded, when expressing his conclusion in the next paragraph, to ignore it. The last paragraph of his Honour's reasons was this:

"Having I believe given the matter anxious consideration my findings of fact lead me to the conclusion that the applicant has made out his case and accordingly the Court will grant him leave to institute proceedings to recover damages."

112. The appellant's proposition is startling. So far as I can see, it requires us to suppose either that in the space of a few lines the judge lost sight of his purpose in reciting the test or that the recitation was for an ulterior purpose. Each supposition would be fanciful. I am not for a moment persuaded that his Honour did not apply the test. On the contrary, I would be prepared to assume from the terms of his reasons that he did. Apart from that, there were several occasions during the course of evidence and argument below in which it was indicated that the judge had present to his mind the necessity of comparing the impairment on which the respondent relied with "other cases in the range of possible impairments" in accordance with the proper test.

115. The second point was that the learned judge's conclusion that the respondent had suffered serious long term impairment was not open on the evidence. Although his Honour did not expressly say so in his reasons, it does appear from the transcribed discussion during argument that the judge regarded the case as a difficult one from the respondent's point of view. Indeed, he expressed himself towards the end of the transcribed argument as "inclined to be against" the respondent. That was said on 20 October last year at Bendigo. Further submissions were received by the judge on 28 October in Melbourne. These were not transcribed. At all events we have not received any transcript of them or been apprised of the substance of them. Whatever they were, it does appear from the last paragraph of his Honour's reasons delivered on 24 November that, after experiencing some anxiety about the case, he had changed his mind.

118. I do not know that I should have come to the same conclusion as the judge. That, however, is not to the point. Before this Court can properly set aside the learned County Court judge's decision it must appear that it was plainly wrong or, to say the same thing in other words, that it was manifestly or wholly erroneous: Mobilio v. Balliotis (unreported, C.A., 10 November 1997). I agree with Ormiston, J.A., substantially for the reasons that he has given, that the appellant has not shown any such thing.