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1 By notice of appeal dated 17 January 2006, the appellant, Yakup Sumbul, appeals against the decision of a judge of the County Court, made on 22 December 2005. Her Honour dismissed the appellant's originating motion by which he sought leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act"), to bring proceedings for the recovery of damages in respect of injuries sustained by him on 2 June 2000 in the course of his employment with the respondent, Melbourne All Toya Wreckers Pty Ltd. It was the appellant's case below that the injury is a "serious injury" within the meaning of paragraph (a) of the definition of that term in s.134AB(37) of the Act. Her Honour concluded, however, that she was not satisfied that the pain and suffering and loss of earning capacity consequences of the impairment were "at least very considerable" within the meaning of s.134AB(38)(c) of the Act. It followed, the judge said, that the appellant failed to establish that the injury is a "serious injury" and, consequently, her Honour dismissed the application.

The appellant's circumstances and the injury

2 The relevant background facts can be shortly stated. The appellant is a 48 year old married man with three children. He was born in Turkey and attended school there for 12 years. He was in the army for a time before migrating to Australia in 1984 where he worked as a packer and then forklift driver at Ford before returning to Turkey for long periods between 1991 and 1993. During some of that period he worked in Turkey as a van driver. Upon returning to Australia in 1994 he worked as a forklift driver until late 1998 and then spent four months in Turkey. Between April 1999 and early June 2000, when he suffered the injury in question, the appellant worked as a labourer with the respondent, stripping cars and shelving large parts.

3 On 2 June 2000, when lifting heavy car parts, he experienced pain in his back and left leg. As a result, he left work before the end of the day. He saw his doctor on the same day and was sent to the emergency department of the Northern Hospital where he was prescribed pain killers. His symptoms worsened, however, and a CT scan in late June 2000 confirmed a disc prolapse of L4/5 with a marked compression of the L5 nerve root. Two epidural injections were administered to the plaintiff at the suggestion of his orthopaedic surgeon but these did not resolve his symptoms and, on 17 October 2000, Mr John Owen, an orthopaedic surgeon, performed a L4/5 laminectomy and discectomy.

4 It was common ground below that, as a result of the injury, the appellant has a residual permanent impairment of a body function, more particularly, the spine or lower back, that produced pain and limitations in his movements. It was also accepted that, in order to establish that the injury is a "serious injury" for the purposes of the Act, the appellant was required to demonstrate that the pain and suffering and loss of earning capacity consequences of the injury were "at least very considerable" within the meaning of s.134AB(38)(c) of the Act. An essential issue before her Honour was whether the appellant established that the consequences of his injury met this statutory requirement.

Claimed consequences of the injury

5 At the hearing of the originating motion the appellant relied on two affidavits that were sworn by him and on a number of reports of medical and other experts to which I will refer later. The respondent also tendered in evidence a number of reports of medical practitioners who had examined the appellant at its request, with the consequence that her Honour had some 29 reports before her. In accordance with what seems to be current practice in cases of this nature, none of the authors of the reports was called for cross-examination. The only person to give oral evidence and be cross-examined was the appellant. Essentially, the appellant's case was that his back injury caused him constant pain and discomfort and limited his ability to move freely and that this precluded him from obtaining employment. To control the resultant pain, he said, he took Panadeine Forte. He contended that he cannot stand, sit or walk for any extended periods. Moreover, the appellant claimed, given his "ongoing back and leg pain" he was unable to perform labouring work and other types of work to which he would otherwise have been suited. He also said that, in light of his physical restrictions and the relatively long period that he has been out of work, his prospects of gaining remunerative employment were bleak. The appellant estimated that his loss of earnings for the four years prior to October 2005 was equivalent to the amount he would have earned with the respondent and that this loss was continuing.

6 The appellant's affidavit material also disclosed that the injury caused him to suffer mild depression and anxiety and to become short-tempered. As result, he said, he has been receiving monthly counselling from a Turkish speaking psychologist and has been taking anti-depressant tablets prescribed by his doctor. He said that prior to the disc prolapse he enjoyed socialising, gardening and playing volley ball on a social basis. After the accident, he said, even his ability to help around the house has been limited to helping his wife with housework, driving the children to and from school and tending his vegetable garden. Since sustaining the injury, the appellant has been attending English classes almost on a daily basis for three hours per day, depending on his comfort level. He also said that he was studying Year 11 VCE physics and mathematics and Year 12 VCE Turkish. Her Honour noted that, although the appellant said that his English skills were limited and he was assisted at the hearing by a Turkish interpreter, he gave a substantial portion of his evidence in English.

7 In his supplementary affidavit, sworn 9 November 2005, the appellant said that, since 2004, his condition has worsened and his ongoing back pain interferes with his walking, standing and sitting. He said he was still having sleeping problems, was irritable and had great anxiety for his future and that of his family. Importantly, he said: "I have tried to obtain a suitable employment on several occasions but was told that with my condition the prospects of any employment would virtually be non-existent." He deposed that "in the light of past events I am not feeling optimistic about my employment prospects in the near future." In his cross-examination, however, the appellant admitted that he had not made applications for employment personally, and said that this was done on his behalf by "Job Search." He also said in cross-examination that his condition "got worse" in the sense that "the pain seemed to increase, become more severe," that he suffered back pain more frequently and that if he stood, or sat, for any length of time his back got worse. He told cross-examining counsel that he never tried to squat in order to see how long it would be before onset of pain and that his work in relation to his car was limited to checking the oil and water, changing a flat tyre on one occasion and washing it once or twice. He said that his gardening activity was confined to looking after the vegetable garden in the backyard which did not involve any digging on his part and that he engaged in gardening only "to kill time."

Respondent's case

8 At the trial the respondent tendered, in addition to reports of the experts, two video films - one was taken on 1 and 2 June 2005 and the other on 8 and 10 November 2005 - that showed the appellant moving about and engaging in a range of activities, including walking, squatting, sitting, getting in and out of his car, driving and gardening. Further reference will be made to these matters but for the present it is sufficient to note that it was claimed for the respondent that the films showed that the appellant was less restricted in his physical movements than he claimed in his evidence or to his doctors. When the relevant parts of the films were shown to the appellant in the course of his evidence he said by way of explanation of his apparent ability to move about that he took extra pain killers if the activities caused him pain. He nevertheless maintained, as her Honour noted, that he could not do light work that required significant lifting or bending.

Claimed errors by trial judge

9 Mr Keenan, for the appellant, attacked the decision on three broad grounds. First, it was said, her Honour failed to give sufficient reasons for her impugned conclusions and, therefore, her decision is vitiated. Secondly, counsel argued, her Honour's conclusion that the pain and suffering consequences of the injury did not meet the statutory criteria for "serious injury" flew in the face of the preponderance of medical evidence and, in any event, was based on an erroneous conclusion that the video films showed that the appellant lacked credibility in respect of his complaints. At the very least, it was said, her Honour gave undue prominence to what she said was shown in the video films and failed to have sufficient regard to the medical evidence about the appellant's physical condition and employment prospects. Thirdly, it was submitted, her Honour's conclusion that the appellant's lack of earning capacity was not "very considerable" was also contrary to the preponderance of medical and other evidence that showed, so it was claimed, that the appellant was not capable of entering the work force and gaining an income that would place any loss of earning capacity below 40 per cent.

Video films and appellant's credibility

10 It is convenient to deal first with Mr Keenan's submission that her Honour erred in her interpretation of what the video films relevantly showed about the appellant and that the judge also erred in her implicit rejection of his credibility. A principal reason why it is appropriate to consider these matters now is that, in considering whether the injury is a "serious injury", her Honour plainly placed significance on what she considered was shown by the films in determining whether the injury had the consequences for which the appellant contended and in implicitly concluding that his complaints were materially exaggerated and, in that sense, lacked credibility. Her Honour noted in her reasons that in the videos the appellant "stood, moved, squatted, walked and bent freely and sat for considerable periods, and that he appeared to be far less restricted than he said in his evidence or to the doctors who examined him. In that regard, his objective presentation is consistent with the medical evidence ... of his physical capacity to return to work not involving heavy lifting or twisting or repeated bending."[1] Mr Keenan contended that her Honour's view as to what the videos showed about the appellant's ability to move freely was not borne out by what the films actually depicted in this regard. On the contrary, it was said, the videos supported the appellant's claims that the injury materially restricted his ability to move about without pain. Thus, it was said, the video showed the appellant bending towards the car, but supporting his body with his hands as he did so. It also showed, it was said, that he had a stiff, straight back except on a few occasions. All this, it was argued, was consistent with the medical evidence as to the appellant's restrictions on movements upon examination. In any event, it was said, her Honour's finding was inconsistent with the preponderance of the opinions of the medical experts on the matter. In that context, it was contended that her Honour's conclusion that the appellant's objective presentation (as the judge saw it) was consistent with the medical evidence was plainly wrong because the films showed that he was continuing to suffer significant pain and restriction of movement, as was also apparent from the medical reports. Mr Keenan submitted that what her Honour must have meant to say in that regard, or what she should have said, was that the appellant's objective presentation was not consistent with the medical evidence.

11 Mr Forrest, for the respondent, submitted that the video films were relevant to two purposes - the appellant's capacity to carry out various tasks and, secondly, his credit on matters such as his claims about his limited ability to squat, bend and so on. It was said for the respondent that, although the films showed that the appellant's ability to move about was consistent with the medical evidence that he had capacity for work with appropriate limitations, we should not view the videos unless we were satisfied that her Honour erred in her interpretation of them. On the other hand, although Mr Keenan was equivocal about the matter at first, in the end, he asked the members of the Court to view the video films, albeit out of court. Mr Forrest argued that an interpretation of the films is very much a matter of impression and, here, it was the judge's impression that was relevant so that, unless there was obvious error on her part in that regard, it would not assist the court to view them. Counsel argued that there was no such error by her Honour. On the question of the utility of the appellate court looking at the videos, Mr Forrest referred to CSR Ltd v. Della Maddalena[2] in which some members of the court dealt with the use of a video film in a civil proceeding for the purpose of attacking a witness's credit. Counsel pointed to the different views taken by the several judges in that case who watched the video as to whether it had any and, if so, what effect on the plaintiff's version of the consequences of his injury as claimed in his evidence. Thus, Kirby, J.[3] with whom the Chief Justice agreed, was "unmoved" by the video film in the sense that his Honour considered it did not contradict the plaintiff's version of the extent of the consequences to him of his exposure to asbestos dust at the defendant's mill. On the other hand, Callinan and Heydon, JJ. said that it left them with the impression that the appellant was physically fit and able to move about and perform other physical functions without apparent pain. Their Honours went on to note[4] that, although the Full Court was in as good a position as the trial judge to make an assessment of what the video depicted as to the plaintiff's condition, in the sense that the court was able to compare that with the reports of the doctors as to what the plaintiff had told them about his condition and the transcripts of the evidence, the court did not have the same advantage as the trial judge of "actually seeing and hearing the evidence of the witnesses, particularly the respondent, and of observing his reaction to each segment of the film as it was shown to him." Their Honours said[5] that, although there are cases in which the advantages enjoyed by trial judges over appellate courts are exaggerated, they considered that in that case "'the subtle influence of demeanour' cannot be overlooked; it is a case in which it 'does not follow that, because the [trial judge] made no express reference to ... demeanour, demeanour ... played no part in [his] findings.'"

12 Notwithstanding Mr Forrest's forceful argument that we should not watch the video films, I came to the reluctant conclusion that I should see them, partly because, as I have said, the matter "loomed large" in her Honour's reasons, partly because the appellant contended that it supported his case and partly because his experienced counsel asked the Court to do so. Having watched the films, I find no error in her Honour's impression as to what they showed as to the extent of the appellant's ability to move about as I have described earlier. My overall impression was that the films depicted the appellant as a person who moved about relatively slowly with a straight or stiff back, although I noted that at one stage he broke into a slight jog to get out of the rain. Nevertheless, they showed that he walked, got in and out of his car, carried out a considerable amount of pruning of what appeared to have been rose bushes in the front garden, all with ease and without any apparent pain or discomfort. Moreover, much of the pruning, attending to the grille of his car and some of the weeding that he did by hand was carried out for prolonged periods in a crouching or squatting position. There were also occasions when the appellant was shown on film to move or kick piles of cut branches to one side, first with one foot then with the other. Similarly, the appellant appeared to have no difficulty in bending or in getting up to a standing position. It is true that, as he claimed in his evidence, the film showed that he stopped pruning from time to time to have a cigarette and have a cup of coffee and speak with his wife, but I did not get the impression that he did this in order to ease any discomfort or pain in his back. The film makes it apparent that the appellant is a very frequent smoker in any event and that, when he took a break from pruning, he did not lean on the wall or other object for support. It was also made apparent in the films that the appellant sat for a very considerable period of time in a place that seemed to have been a coffee shop or restaurant.

13 Consequently, as I have said, I consider there was no error shown in the judge's interpretation of what the videos disclosed about the appellant's physical condition and, as has been noted, the appellant's evidence in that regard was inconsistent with her Honour's finding. There were other inconsistencies in the appellant's claims to which the respondent pointed and which the judge was entitled to take into account in determining his credibility or reliability. More particularly, his claim in his affidavit that he had "ongoing pain, left leg symptoms" and "severe back pain and left leg symptoms" was inconsistent with his statements to the doctors that he no longer suffered leg pain and that it had resolved after the operation. Further, the appellant asserted in his affidavits that he had "tried to obtain suitable employment on several occasions", but under cross-examination said he was unable to recall any application that he had made for alternative employment, contending that he was not ready for work. In the circumstances, I think it is plain enough that her Honour was entitled to doubt the accuracy of the appellant's claims about the extent of the physical consequences of his injury.

Loss of earning capacity

14 Although I will come back to the credit issue, it is convenient to turn now to Mr Keenan's claim that her Honour erred in her conclusion that the appellant had not established that his loss of earning capacity by reason of the impairment was at least very considerable within the meaning of the Act. So far as is relevant, in order to establish that the loss of earning capacity consequences of the injury were at least "very considerable" for the purposes of s.134AB(38)(c) the appellant had to demonstrate that, at the date of the decision, he had a loss of earning capacity of 40 per cent or more as "measured" by the formula in sub-section (38)(f). And, broadly, paragraph (f) requires a comparison between the appellant's "after-injury" earning capacity and his "without injury" earning capacity. In considering whether loss of earning capacity has been established, the court is directed[6] to take into account the worker's capacity for suitable employment, after appropriate rehabilitation or retraining, and the reasonableness of attempts to undertake rehabilitation or retraining, that would result in the worker earning more than 60 per cent of gross without injury income.

15 It is important to note, as I have said, that the appellant's essential case below was that he was not capable of gaining suitable employment due to the physical consequences of his injury. In considering the matter there must be excluded from the analysis, as Mr Keenan accepted, any psychological or psychiatric consequences of the injury.[7] Her Honour concluded that the appellant was capable of earning, in suitable employment, more than 60 per cent of the notional without injury earnings. It was her Honour's view that the weight of the evidence established that the appellant was physically capable of engaging in appropriate alternative employment that could return him income of between $35,000 and $41,000 per annum. The judge noted that the without injury earnings figure on which the appellant principally relied was $39,714, 60 per cent of which was $23,828. Thus, her Honour said, even if the appellant were to work less than full-time, he would nevertheless be capable of earning more than that amount. Be that as it may, the essential dispute between the parties on this issue was whether the appellant had established that he was physically incapable of modified work.

16 Although, as I have noted, her Honour's impugned conclusions were, to some extent, informed by her impression of what was relevantly shown by the videos and by her view as to the appellant's credibility, the judge's explanation of why she considered that he had failed to establish relevant loss of earning capacity was made, in terms, by reference to the reports of medical officers and other relevant experts. Thus, her Honour concluded that the "overwhelming consensus among the experts" was that the appellant was "physically capable of returning to employment that [did] not require him to perform repeated bending or twisting or lifting or carrying weights above 5kgs ... or to jobs involving clerical, supervisory or inspection type activities." The judge considered that it was the appellant's perception, that was not supported by the experts, that he was too disabled, physically and psychologically, to obtain work that resulted in his failure to consider appropriate employment, notwithstanding his general fitness, mobility, level of intelligence, education and English skills. In my view, it is plain enough that the preponderance of the evidence of the experts, on which Mr Keenan relied, in fact supports her Honour's conclusion on this issue, particularly if the psychological or psychiatric impact of the injury on the appellant is disregarded. Consequently, even if one were to put aside the judge's findings as to what the videos showed, the impugned conclusion was open to her Honour on the medical evidence to which I now turn. Thus, Mr Owen, the appellant's treating surgeon, relevantly said in his report of 28 October 2002, that, although his capacity to return to previous employment was poor, he was relatively intelligent and, but for his poor English, he could have been retrained to undertake another job. He recommended that, with some restrictions on his activities, the appellant could be retrained to full-time employment with limitations. Mr Buzzard, a general surgeon, who examined the appellant on behalf of the respondent on 12 February 2001, said in his report that he had difficulty in communicating with the appellant because of the language barrier. He relevantly concluded that the appellant continued to be incapable of undertaking heavy work and needed "a graduated return to work program". Since then, of course, the appellant's English had improved, as had his physical condition. This is apparent from the later reports, such as those of Ms McKenzie and Mr Battlay to which I refer below.

17 Mr John O'Brien, an orthopaedic surgeon who examined the appellant for the respondent, reported in June 2003 that the appellant's employment would have to consist of extremely light duties and noted that someone who remained disabled was unlikely to be retained. He concluded that the appellant was totally incapacitated and would not return to any form of gainful employment in the foreseeable future. It is to be noted, however, that in forming his conclusion Mr O'Brien took into account the earlier note in his report to the effect that the aggravation of the appellant's back was caused by most forms of activity, including prolonged sitting. This was based on what the appellant told him as to his physical limitations. Thus, to a material extent, the accuracy of this aspect of Mr O'Brien's conclusions was dependent on the reliability of what the appellant told him.

18 Mr Michael Shannon, another orthopaedic surgeon who examined the appellant for the respondent, said in his report of 30 September 2003 that the appellant was suffering ongoing spasms in the back and was unfit for significant physical work "at this stage". He did not opine as to whether the appellant was fit for other employment. Ms Judith McKenzie, an orthopaedic surgeon who also examined the appellant for the respondent, relevantly noted in her third report of 6 June 2005 that the appellant said that he was able to sit for 30 to 45 minutes, drive for about an hour, stand or sit for about half an hour, walk 30 to 45 minutes and bend and carry weights of no more than 2 to 3 kgs. Ms McKenzie also noted that the appellant has an "emotional disturbance." She concluded that he was physically capable of undertaking employment that did not require him repeatedly to lift or carry weight in excess of about 5 kgs, twist or bend repeatedly his trunk under pressure or use vibratory or percussive equipment or work with his trunk half bent forward for longer than 30 minutes at any one time.

19 Mr Peter Battlay, a general surgeon, noted in his report of 15 September 2004 that the appellant spoke quite good English, that he walked without a limp and held his lumbar spine in normal posture. On examination, said Mr Battlay, the appellant demonstrated forward flexion of 35o although this improved to a comfortable 90o under other circumstances, performed lateral flexion on either side to 20o and complained of pain notwithstanding there was no visible reflex muscle spasm. Extension was performed to 30o although he again reproduced pain. Mr Battlay said that he found no evidence of sciatic nerve root irritation or lower limb neurological loss. He concluded that the appellant demonstrated excellent function in his lumbar spine and, in his opinion, was fit for moderate work. In his report of 22 October 2004, Mr Battlay said that he thought that the appellant was suited to carry out the type of work that was proposed by the Industrial Work Conditioning Clinic ("IWCC") in its report of 12 October 2004 to which I will refer shortly.

20 Mr Richard Strangward, a general surgeon, said in his report of 24 October 2004, that he essentially agreed that the appellant was fit to perform the work recommended by IWCC. Mr Klug, a neurosurgeon, said in his report of 4 August 2005, that in view of the appellant's background and training it would be difficult for him to find suitable employment. As with other medical practitioners, Mr Klug recognised that the appellant developed a psychological disturbance resulting from his injury and that this appeared to be of some substance. Nevertheless, he was of the view that if the appellant undertook appropriate training he could undertake some light physical-type work at bench top height.

21 The appellant was assessed on 12 October 2004 by IWCC, an occupational rehabilitation consultant and vocational advisor, essentially for the purpose of reviewing his past skills and experience and formulating a suitable vocational management plan. In its report of that date, IWCC noted that the appellant considered himself to be significantly disabled from working and that he declined the suggestion of IWCC for short term retraining in computers or the like. He claimed that his inability to sustain any posture for prolonged periods was a main barrier to such retraining. When the clinic pointed out to him that he had been attending English classes for the past three years on almost a daily basis, the appellant explained that he did so for a change of mind and because he was told he could change posture at will (as he no doubt would have been able to do during any retraining).

22 In summary, IWCC said that the appellant adopted a "retired" role with limited interest in seeking alternative employment although it considered that he had greater functional capacity than he claimed. It concluded that, having regard to the available medical opinions, which included the report of Mr Battlay and CT and MRI reports, the appellant was fit to seek suitable employment with adherence to the following functional restrictions, namely, avoiding heavy lifting, pushing and pulling, avoiding repetitive movements of the lumbar spine and bending and handling manually weights over 15kgs. The consultant went on to state that, given his working experience, the appellant would be suitable in a range of work including despatch attendant, car rental attendant, car sales person, order clerk, or stores office clerk, packager or container filler or product assembler.

23 Thus, as I have said, even if there is relevant doubt about the judge's interpretation of the video films, it is plain enough that the conclusion that the appellant is physically capable of undertaking alternative employment with appropriate restrictions was well open to her Honour on the medical evidence as a whole. Consequently, I would reject the appellant's claim that her Honour erred in concluding that he had not established that his loss of earning capacity arising out of his injury was "at least very considerable" for the purposes of s.134AB(38)(c) of the Act.

Pain and suffering consequences

24 I now turn to consider the appellant's claim that her Honour erred in concluding that the appellant had not established that the pain and suffering consequences of his injury were such as to constitute it a "serious injury" for the purposes of the Act. If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are "at least very considerable." In my view, there was no such evidence before her Honour.

25 It was said for the appellant that her Honour's conclusion is contrary to the medical evidence and, in particular, was inconsistent with the medical evidence of what Mr Keenan called the "objective circumstances" of the appellant's injury, particularly the extent of the disc disruption, the degenerative changes to the spine, the wasting of limbs and muscles, muscle spasms and the appellant's complaints of constant back pain and the significant limitations in his movements. It was also claimed that her Honour gave undue weight to what she perceived was shown by the video films and erred in concluding inferentially that the appellant lacked credibility. Mr Keenan argued that her Honour could not have analysed the medical reports that showed the substantial extent of the injury and its impact on the appellant given that her Honour did not, in terms, discuss the medical reports in her reasons. It is true that all, or nearly all, of the medical reports to which I have adverted state that, on examination, the appellant's range of movements were constrained and refer to degenerative changes of his spine and other aspects of the "objective circumstances." But it is plain enough from her Honour's reference in her reasons to the medical experts whom I have mentioned, and from her reference to the substance of their reports, that she had due regard to their contents notwithstanding that she did not discuss them in her reasons. That her Honour sufficiently considered the medical reports is also evident from her recognition that the reports show that the appellant had physical capacity to undertake suitable alternative employment.

26 As is apparent, this case was, in large part, a "credit" case where it was important for the judge to assess the appellant's credibility or reliability as a witness in relation to the claimed consequences of his injury. The resolution of the appellant's credit worthiness, and whether the pain and suffering consequences of the injury were "at least very considerable," necessitated the judge make a determination that involved questions of fact, degree and value judgement. As this Court said in Barwon Spinners Pty Ltd v. Podolak,[8] where such questions arise it makes it more difficult for the appellant to establish error. And in determining whether there was such error, an important matter to take into account, in a case such as the present, is that the trial judge had an advantage of hearing and seeing the appellant give his evidence, including observing his demeanour, an "advantage" not available to this Court.[9] Moreover, her Honour had the benefit of viewing the videos in the context of having heard and seen the appellant give his evidence and be cross-examined and was, therefore, able to assess the extent of his command of the English language and his credibility generally. Importantly, her Honour's conclusion as to the appellant's unreliability as an historian meant that the medical opinions that would otherwise have relevance to the pain and suffering consequences of the injury had to be read in that context.[10]

27 In the circumstances, I consider that her Honour's conclusion that the appellant has failed to demonstrate that the pain and suffering consequences of the injury were "at least very considerable" for the purposes of the Act is not attended with relevant error.

Failure to state reasons

28 The appellant's claim that her Honour failed to give sufficient reasons for her impugned conclusions may be dealt with shortly. It was said for the appellant that the judge made an impermissible "quantum leap," without due regard to objective facts, from her analysis of the evidence to the conclusion that the appellant has not established that the injury is a "serious injury." It was also submitted that her Honour made no specific findings and provided no explanation as to how and in what way the appellant "appeared to be far less restricted than he said in evidence or to the doctors." Similarly, it was claimed, her Honour failed to explain what particular aspects of the video films she considered to be adverse to the appellant's case. Further, it was argued for the appellant that the judge did not explain why the "objective circumstances" that were dealt with in the medical reports failed to persuade her that the injury was a "serious injury." It was also claimed that her Honour did not sufficiently explain how she arrived at the conclusion that the appellant failed to demonstrate sufficient loss of earning capacity.

29 It is clear enough that, ordinarily, failure by a judge to explain adequately the reasoning process that has led to the ultimate conclusion constitutes an error of law and vitiates the decision, although whether the reasons are adequate will depend on all the circumstances. It is also apparent from the authorities that the reasons must deal with the key elements of a party's case and explain why critical evidence has been rejected.[11] In considering the content of the obligation to give reasons it is necessary to bear in mind that her Honour's task was to identify the consequences to the appellant of the injury and determine whether those consequences, by comparison with other cases in the range of possible impairments, can be fairly described as being "at least very considerable." That necessarily involved, as I have noted, elements of fact, degree and value judgment that do not readily lend themselves to detailed elucidation or explanation as was recognised by this Court in, for example, Nichols v. Robinson.[12] In that case, Winneke, P. with whom Phillips and Charles, JJ.A. agreed, said[13] in relation to such an analysis: "Like an assessment of non-pecuniary loss in a personal injury case, it is not a value judgment which needs now to be attended by statements of principle, nor does it readily admit of explicit reasoning." A little later, the learned President said:[14]