Swannell & Transport Accident Commission v Farmer [1998] VSCA 104

2. I agree with Batt and Buchanan, JJ.A. There is only one point in their Honours' reasons for judgment that I desire to emphasize.

5. The purpose of the legislation with which this appeal is concerned was to confine relief to persons who have suffered serious injury. They are made to pass through the gateways as a screening mechanism to make sure that they have in truth suffered such an injury. It is inconceivable that Parliament intended that, whilst they are in the process of doing so, they may lose their rights altogether because the tortfeasor dies. For the reasons explained in paragraph 33 of the joint judgment there is a real danger that they may do so. The implication is not that Wilson v. Nattrass (1995) 21 M.V.R. 41 was wrongly decided but rather that consideration should be given to amending s.29 of the Administration and Probate Act 1958. Section 29(4) is of no assistance, because the difficulty does not arise from the order in which damage is suffered and death occurs.

13. This is an appeal, by leave granted by the Court of Appeal on 26 February 1998, by the appellant defendants in proceeding No. 9608745, commenced by originating motion filed on 30 September 1996, from an order of a judge of the County Court at Melbourne made on 29 October 1996 granting the respondent plaintiff, who sued as administrator with the will annexed of the estate of John Ernest Farmer deceased, leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 ("the Act"), scil., to bring proceedings for the recovery of damages in respect of the injury of the deceased as a result of a transport accident.

17. The facts giving rise to the proceeding and this appeal are as follows. On 19 December 1989 John Ernest Farmer ("the deceased") was injured in a transport accident at Frankston when a motor vehicle driven by him came into collision with a motor vehicle driven by the first appellant. As a result of the accident the deceased suffered orthopaedic injuries to his right leg, his right shoulder and his neck. In particular he sustained a compound fracture of the right patella, an osteochrondal fracture of the right femoral condyle, a fracture of the upper right tibia and a tear of the right lateral meniscus. It was also said that he suffered resultant mental and behavioural disturbance or disorder.

20. The deceased, who was born on 24 August 1933, was unemployed at the time of the accident, having ceased work as a boilermaker/welder in May 1989 on the recommendation of his psychiatrist, who considered that he was not coping with stress. He had suffered a myocardial infarction in 1985 and another in 1989. His condition was one of mild effort angina. His cardiovascular condition degenerated from February 1993 and he died on 13 August 1994. The causes of his death were cardiac arrhythmia consequent upon ischaemic heart disease and cardiac failure, according to the death certificate. His death, then, was not related to, or caused by, the transport accident of 1989.

23. Prior to his death, the deceased had been examined by, and reports had been obtained from, various medical practitioners for the purpose of determining a degree of impairment resulting from the injuries sustained in the accident. He had made a claim for compensation under the Act and on 8 January 1992 had been notified that his level of permanent impairment had been assessed at 18 per cent. The appellants accepted that after that the deceased had had further medical examinations with a view to having his impairment level re-assessed for impairment benefits and that the appellant Commission had arranged for him to be re-assessed for impairment and had had him examined by psychiatrists in late 1993 and early 1994, though no further orthopaedic assessment had been arranged by it. The appellants admitted that the Commission had by letter dated 8 February 1994 informed the deceased's solicitors that his current impairment level had by that date been assessed at 15 per cent. Notwithstanding the foregoing, the deceased had not at the time of his death taken any steps towards establishing that his injuries were a "serious injury" within the meaning of s.93(17) of the Act.

26. The injury to the deceased's right leg resulted in marked stiffness and constant pain in his right knee, which became worse in cold weather. The stiffness was a loss of flexion, and there was the possibility of serious degenerative changes in the future and of major further surgery as a consequence. The deceased's mobility was markedly affected by the injury to his right knee. He had an antalgic gait and walked with a limp. He was only able to walk short distances and still required a walking stick. He had difficulty with stairs and inclines and his driving was restricted. His social and recreational activities were also affected by his injuries: he could no longer prune his roses, start a lawn mower or throw a ball, and his fishing activities were diminished, though not terminated. After the accident, the deceased had bought a motor car for his own use. He began light work for his brother in 1992, first in the office, answering the telephone, and then doing light, sedentary, welding. This continued until the very day of his death. There were other factors causing restrictions in the things which the deceased could do, apart from the injuries sustained in the accident. In particular there were his pre-existing cardiovascular disease and a pre-existing depression and anxiety state.

30. After setting out the nature of the proceeding, the essence of the legislation applicable, and the issues, the County Court judge stated the facts in somewhat more detail than we have done. Noting that the respondent relied on the impairment of function of the right leg, alternatively of the right shoulder, alternatively of the neck in support of his submission that the deceased had suffered long-term impairment or loss of a body function within para.(a) of the definition of "serious injury" in s.93(17) and alternatively contended that the deceased had a long-term mental or behavioural disturbance or disorder within para.(c) of that definition, his Honour, part-way through his review of the facts, stated his opinion that the respondent had failed to establish either that the injury or injuries to the right shoulder or neck constituted a serious long-term impairment or loss of a body function or that the psychiatric disabilities, which may have been aggravated or initiated by the transport accident, constituted a severe long-term mental or severe long-term behavioural disturbance or disorder.

33. His Honour then turned to the leg injuries. He reviewed the findings, opinions and prognoses of Mr. Wuttke and Mr. Bergman, orthopaedic surgeons who had examined the deceased on behalf of the deceased and the Commission respectively, as well as the lay evidence, by affidavit and in cross-examination, of the respondent and the brother of the deceased. His Honour quoted from the well known statement of Crockett and Southwell, JJ. in Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140, which has been approved by a five-member division of this Court since his Honour's decision: Mobilio v. Balliotis (unreported, Court of Appeal, 10 November 1997). It is convenient to set out a little more of that passage than his Honour actually set out. Their Honours said at 140-141:

"We think 'long-term' is not an expression likely to give rise to difficulty. 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 assistance 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 ..."

His Honour then expressed his opinion by way of conclusion that, having regard to the extent and number of the discrete injuries to the area of the knee, to the opinion of Mr. Wuttke and the gloomy prognosis of Mr. Bergman, taken together with the lay evidence, the plaintiff had proved on the balance of probabilities that the injuries, their nature and extent and the pain and suffering and loss of enjoyment of life accompanying them, constituted a serious injury within the meaning of s.93(17).

38. His Honour then turned to consider the respondent's contention that the deceased died with a cause of action in negligence vested in him. After analysing the judgments in Wilson v. Nattrass (1995) 21 M.V.R. 41, his Honour expressed the view that they emphasized that a cause of action at common law was not abolished by s.93 of the Act, it was merely regulated. He then referred to s.93(5), set out below, as confirming this. His Honour concluded by expressing an opinion which accepted the respondent's above contention and granted the respondent leave to commence proceedings against the appellants. The judge had earlier, when considering the question of "serious injury", expressed the view that the absence, through death, of the deceased did not prevent him from being satisfied "that the injury is a serious injury [emphasis added]", as required by s.93(6), which also is set out below.

42. Section 11 of the Transport Accident (General Amendment) Act 1994 provides that the Transport Accident Act 1986 as in force before 1 January 1995 continues to apply to and in respect of a transport accident which occurred before 1 January 1995. We accordingly set out provisions from the Act as in force before 1 January 1995. In the case of s.93, which is the principal provision in question, all the amendments made to it by Acts passed before that date had, with one exception, which we shall mention, come into force before the date of the transport accident here in question. So far as material, s.93 provided:

"(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section. (2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if - (a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and (b) the injury is a serious injury. (3) If - (a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and (b) the degree so determined is 30 per centum or more - the injury is deemed to be a serious injury within the meaning of this section. (4) If - (a) under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and (b) the degree so determined is less than 30 per centum - the person may not bring proceedings for the recovery of damages in respect of the injury unless - (c) the Commission - (i) is satisfied that the jury is a serious injury; and (ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or (d) a court, on the application of the person, gives leave to bring the proceedings. (5) A copy of an application under sub-section (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action. (6) A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury. ... (17) In this section - ..... 'serious injury' means - (a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) loss of a foetus. ..."

The commencement of s.34, which is referred to in s.93(1), was 1 January 1987. Sub-section (5) as set out above was inserted by the Magistrates' Court (Consequential Amendments) Act 1989 and came into operation on 1 September 1990. Since it is a procedural provision, it no doubt applied to any application under sub-s.(4)(d) made after that date, irrespective of the date of the transport accident. But, for present purposes, it would be immaterial if the applicable provision were the previous sub-s.(5). For the only difference between the two provisions is in the introductory words down to and including the word "served". The previous provision commenced, "An application under sub-s.(4)(d) shall be made by summons and a copy of the summons shall be served ..."

47. It is necessary to set out some other provisions of the Act. Section 3(3) provided:

"(3)(a) In this Act a reference to an injury or death (not being a reference to the death of a dependent spouse or dependent child of a deceased person) is a reference to an injury or death, as the case may be, caused by or arising out of a transport accident; and (b) a reference to a person who is injured or dies (not being a reference to dependent spouse or dependent child of a deceased person) is a reference to a person who sustains injuries that were, or whose death was, as the case may be, caused by or arose out of a transport accident; and (c) ..."

The words "or arising out of" and "or arose out of" were omitted from paras.(a) and (b) respectively by s.5(3)(a) and (b) of the Transport Accident (General Amendment) Act with effect from 1 January 1995. Nothing turns on those omissions. By s.3(5) for the purposes of the Act -

"(c) a reference to a person who is injured or dies includes, if that person is dead, a reference to the legal personal representative of the person."

53. Section 93 constituted Div.1, entitled "Damages in Respect of Death or Serious Injury", of Part 6 of the Act, which was entitled "Legal Rights Outside This Act". Division 2 of that Part was headed "Indemnity by Commission" and, in view of the argument for the respondent, it is necessary to set out some of its provisions. By s.94(1) the Commission was liable, so far as material, to indemnify, amongst others, the owner or driver of the registered motor vehicle "in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle". Sub-section (7) provided:

"(7) If liability has been incurred to a person by an owner or driver in respect of which the Commission is liable under this section to indemnify the owner or driver and the owner or driver - (a) ... (b) is dead or cannot be found or, in the case of a corporation, has been wound up - the person may recover against the Commission a sum equivalent to the amount for which the person could have obtained a judgment against the owner or driver or equivalent to the amount of the liability of the Commission under the indemnity, whichever is the lesser.

Section 95 related to survival of actions and provided in part:

"Without affecting the survival of any cause of action on the death of any person, in the case of the death of the owner or driver of a motor vehicle ... - (a) any reference in this Division to liability incurred by the owner or driver in respect of the death of or injury to any person includes a reference to liability in respect of the death or injury under any cause of action surviving against the estate of the owner or driver ..."

59. Finally, s.29 of the Administration and Probate Act 1958, so far as material, provided:

"(1) Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate: Provided that ..."

64. The appellants contend that the decision was wrong in two principal respects. In the first place it is said that no cause of action in respect of the deceased's injuries passed to the deceased's estate under s.29 of the Administration and Probate Act, which, as we have seen, provides that "... on the death of any person ... all causes of action ... vested in him shall survive ... for the benefit of his estate ...". Secondly the appellants contend that the deceased did not suffer a serious injury within the m0eaning of s.93(17) of the Act.

68. It was submitted on behalf of the appellants that at the date of the death of the deceased there was no cause of action for damages for his injuries vested in him, for s.93 of the Act extinguished or conditionally extinguished the cause of action. Accordingly the application for leave should have been refused because the lack of a cause of action meant that no proceedings could be maintained.

71. The appellant relied upon the decision of the majority of the Full Court in Wilson v. Nattrass as establishing that s.93(1) of the Act extinguished common law causes of action for injuries sustained in transport accidents, although a cause of action could be brought to life in certain circumstances. The learned trial judge relied on the same authority to reach the opposite conclusion. He said that the judgments of the majority of the Court in that case "... emphasized that the cause of action at common law is not abolished by s.93, it is merely regulated". That interpretation supported his Honour's conclusion that "... when the deceased died he had vested in him the cause of action against the defendant and this cause of action was not abolished by the operation of s.93 ...". As will be seen, in our opinion the judgments of the majority in Wilson v. Nattrass answer the respondent's principal argument. Despite the submission for the respondent, we do not think that the decision is distinguishable or inapplicable.

74. In Wilson v. Nattrass the plaintiff sued for damages for injuries he sustained in a motor vehicle accident in South Australia. The defendant contended that the claim was barred by s.93 of the Act as the Commission had not determined the degree of the plaintiff's impairment. The plaintiff responded that s.93 had no application to an action arising from an accident that occurred outside the State of Victoria. Brooking, J. held the proceedings were precluded directly by the terms of the Act in that s.93(1) was not confined to transport accidents which occurred in Victoria. The section prevented the recovery of damages for injuries sustained for transport accidents in Australia unless the conditions set out in the section were met. Ashley and Hedigan, JJ., on the other hand, held that the Act operated indirectly to bar the action as part of the lex fori, which was to be applied in accordance with the common law rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1, as reformulated by Brennan, J. in Breavington v. Godleman [1988] HCA 40; (1988) 169 C.L.R. 41 at pp.110-11. The question was whether the plaintiff's claim arose out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claimed to enforce.

77. For the purpose of answering that question the majority of the Court analysed the provisions of s.93 of the Act. Ashley, J. concluded, at p.54:

"[T]he proper construction of sub-ss.(1), (2) and (4) appears to me to be that, subject to a condition or contingency being established, the common law right of action previously enjoyed by persons injured in transport accidents in this State is extinguished ..."

The condition or contingency was satisfaction of the requirements of a determination by the Commission of a degree of impairment and the sustaining of a serious injury within the meaning of the Act. The extinguishment referred to by Ashley, J. was not one which would occur on the fulfilment of a contingency, but one which presently existed and would continue until the happening of a contingency. The same concept might be expressed in terms of an extinguishment that is defeasible. It is probably not accurate to speak of the Act extinguishing causes of action, for s.93(1) is expressed to operate only in respect of transport accidents occurring on or after the commencement of s.34 of the Act. Unless the Act operates to extinguish causes of action at the moment they spring into life, which we think hardly likely, the Act does not extinguish existing causes of action but rather extinguishes a field of potential rights and liabilities. No longer can causes of action arise in respect of transport accidents in Victoria, unless the twin requirements are met. However, if those requirements are met, the extinguishment ceases to operate. Hedigan, J. expressed views similar to those of Ashley, J. He said, at p.59:

" In my opinion, the effect of s.93(1) is contingently to extinguish the right to recover common law damages for personal injuries in Victoria in respect of a transport accident, wherever occurring. ... The attainment or fulfilment of any one of the contingencies - conditions set out in s.93(2), (3) and (4) will enable the bringing of a proceeding for the recovery of common law damages ... Once one of these criteria is fulfilled, the contingently extinguished right to bring common law proceedings springs into life ..."

In Thompson v. Hill (1995) 38 N.S.W.L.R. 714 at p.729, Kirby, P. said that Hedigan, J. "supported the view of Ashley, J. that s.93 had abolished common law damages but then, by its own force, subsequently revived them in defined cases." And see per Clarke, J.A., at p.740; Nalpantidis v. Spark [1996] SASC 5461; (1995) 65 S.A.S.R. 454 at p.468 per Doyle, C.J.

84. Although it was not strictly necessary to decide the point, the majority were of the view that s.93 did not add an element to a cause of action that otherwise arose in respect of the transport accident. Ashley, J. at p.57, said:

"In the course of these reasons I have expressed the opinion that s.93(1)-(4) does not add an element to the right of action arising when any one of the gateways has been accessed."

"[T]he threshold matters that have to be satisfied, the keys to the gateways, are not elements of the cause of action at all and add no dimension to the characterization of the cause of action ..."

90. Even though s.93 does not add an element to any cause of action for damages arising from a transport accident, the judgments of the majority of the court in Wilson v. Nattrass make it clear that at the date of the death of the deceased there was no cause of action vested in the deceased which could survive for the benefit of his estate. The section is substantive. It does not assume that an action may be brought and merely bar the remedy.

93. The cause of action in the present case is the product of the common law, not the Act: Wilson v. Nattrass, supra, at p.41, per Brooking, J. Once the deceased sustained his injuries, all the elements of the cause of action that would spring into life if the requirements of s.93 were satisfied were present, but no damages could be recovered until there was a determination of the deceased's impairment by the Commission and his injury met the description of a serious injury. In that state of affairs there was no cause of action vested in the deceased, for the cause of action was extinguished. The same result ensues if the cause of action is regarded as contingent, that is, rather than its non-existence being defeated by satisfaction of the requirements of a determination by the Commission and serious injury, its existence depends upon that satisfaction (cf. Southgate v. Waterford (1990) 21 N.S.W.L.R. 427, at p.438).

96. In our opinion the lack of an enforceable right at the date of the deceased's death leads to the result that there was no cause of action which survived for the benefit of his estate pursuant to s.29 of the Administration and Probate Act. Even if "causes of action" are not confined to rights enforceable by action (compare General-Motor-Holden's Ltd. v. Di Fazio [1979] HCA 43; (1979) 141 C.L.R. 659 at 668), there must be an enforceable right at the time of death. As Denning, L.J. said in Sugden v. Sugden [1957] P. 120, at pp.134-5:

"'Causes of action' in the section means, I think, rights which can be enforced - or liabilities which can be redressed - by legal proceedings in the Queen's courts. These now survive against the estate of the deceased person. 'Causes of action' are not, however, confined to rights enforceable by action, strictly so called - that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies ...

It must be noticed, however, that the section only applies to causes of action 'subsisting against' the deceased on his death. This means that the right or liability must have accrued due at the time of his death.

... I do not think that the fact a cause of action is discretionary automatically takes it out of the Act .... The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death."

102. Counsel for the respondent sought to draw a distinction between a cause of action arising from a transport accident and the right to recover damages founded upon the cause of action. It was submitted that s.93 assumed the existence of the cause of action, but directed the courts not to exercise their jurisdiction to award damages. There was a cause of action vested in the deceased at the time of his death, as well as a vested right to apply to the Court for leave to bring proceedings. All that was lacking was a vested right to commence proceedings.

105. However, the majority of the Court in Wilson v. Nattrass held in terms that s.93 extinguished causes of action or "the common law right of action", according to Ashley, J., or "the right to recover common law damages", according to Hedigan, J., and that result is distinct from merely barring the remedy. The distinction is akin to that between a time provision which bars, that is, extinguishes the right and one which bars the remedy, leaving the right extant.

108. The distinction has been canvassed in cases dealing with the extension of time for bringing proceedings that would otherwise be defeated by a time provision. Thus in Aries Tanker Corporation v. Total Transport Limited [1977] 1 W.L.R. 185, at p.188, Lord Wilberforce said of the time bar found in article III rule 6 of the Hague Rules, that it

"... is a time bar of a special kind, viz., one which extinguishes the claim ... not one which, as most English statutes of limitation ... and some international conventions ... do, bars the remedy while leaving the claim itself in existence. ... The charterers' claim after May 1974 and before the date of the writ, had not merely become unenforceable by action, it had simply ceased to exist ..."

In Consolidated Investment and Contracting Co. v. Saponaria Shipping Co. Ltd. [1978] 1 W.L.R. 986, at p.992, Geoffrey Lane, L.J. referred to "... the antithesis between the extinction or the barring of the claim on the one hand and the extinction or barring of the remedy on the other." See also Yew Bon Tew v. Kenderaan Bos Mara [1983] 1 A.C. 553 at p.558; Australian Shipping Commission v. Kooragang Cement Pty. Ltd. [1988] VicRp 4; [1988] V.R. 29. In Wilson v. Nattrass the Court decided that the bar imposed by s.93 was of the first type, not the second: it went to the substance of the claim, not merely the procedure for enforcing it. Compare s.93(20) of the Act, which applies retrospectively from 1 January 1987.

113. In Stevens v. Head [1993] HCA 19; (1993) 176 C.L.R. 433, the Court was concerned with a statute which provided that no damages could be recovered for the non-economic loss sustained by a person injured in a motor accident unless that person's ability to lead a normal life was significantly impaired, and limited the amounts that could be recovered for non-economic loss. The majority of the Court said at p.457 that, if the statute had partially extinguished or had made contingent the common law cause of action for damages for non-economic loss, it would have been classified as a substantive, not procedural, law. Their Honours held that the liability was not truly contingent, but the right to enforce the liability was. In Wilson v. Nattrass the majority held that s.93 extinguished the liability.

116. Unlike a time bar, which upon the effluxion of the prescribed period of time terminates an existing ability to recover damages, s.93 requires events to occur before damages can be recovered for injuries sustained in a transport accident and, until these events occur, prevents causes of action coming into existence. However, s.93, like the time bar that is said to extinguish a cause of action, is a substantive, not procedural, provision. If a person injured in a transport accident dies, in our view there is no cause of action vested in that person that can survive for the benefit of his or her estate unless the steps set out in s.93 have taken place, for the potential right to recover damages is extinguished, and the events that might bring it to life have yet to occur. Further, in our opinion it is not the case that if the requirements of a determination of impairment and the existence of a "serious injury" were to be satisfied after the death of a person injured in a transport accident, the satisfaction would operate retrospectively to produce the result that at the date of death the deceased is to be regarded as having a vested cause of action. Compare Commonwealth of Australia v. Mewett [1994] FCA 1444; (1994) 126 A.L.R. 391; affd. (1997) 146 A.L.R. 299; Commonwealth of Australia v. Dixon (1988) 13 N.S.W.L.R. 601, at pp.609-10.

119. The learned trial judge found support for his conclusion that s.93(1) did not abolish causes of action in sub-s.(5), which we have set out above. His Honour accepted the submission of counsel "... that if sub-section (1) abolished the cause of action, it could hardly have been contemplated by the legislature that any injured person could still have a claim to have one when applying under sub-section (4)(d)." In our view there is no inconsistency between the sub-section and the conclusion that sub-s.(1) extinguished causes of action or a field of potential rights and liabilities. Upon the granting of leave under sub-s.(5) the applicant may sue upon a cause of action arising from the transport accident. As the word "claims" indicates, the sub-section does no more than identify those who will be the defendants if the application is granted. His Honour's use of s.93(5) is inconsistent with the decision of the majority in Wilson v. Nattrass.

122. A point which arose during the hearing of the appeal was whether the effect of s.93 was to render inchoate a cause of action which would have been available at common law but for the section, and, if so, whether such an inchoate cause of action was one which could survive for the benefit of a deceased person's estate under s.29 of the Administration and Probate Act.

125. As Ashley and Hedigan, JJ. held, s.93 does not add an element to any causes of action arising from the transport accident, and, as Brooking, J. held, the section does not create a statutory cause of action. The section contemplates a cause of action consisting only of its common law elements and is concerned with imposing a barrier to enforcing that cause of action rather than creating a new, more complex cause of action. Cf. Hall v. National & General Insurance Co. Ltd. [1967] VicRp 41; [1967] V.R. 355, at p.364. Thus s.47(7)(c) empowers the Commission to determine the degree of impairment of an injured person "for the purpose of proceedings for the recovery of damages in respect of the injury". If the determination were an element of the cause of action for damages, one would expect the section to speak of a determination being made for the purpose of recovering damages.

128. Accordingly, we do not consider that a person injured in a transport accident who has not satisfied the requirements of s.93 has an incipient, undeveloped or immature cause of action. The person is barred from recovering damages for a cause of action which needs no further elements, and one which will be available to found suit once the requirements of the section are met. In any event we do not think that an undeveloped, incomplete cause of action can survive for the benefit of a deceased person's estate. The legal position of a person to whom some only of the elements of a cause of action are available is the same as that of a person to whom no element is available.

131. The respondent said that if the appellant's argument was correct, a person injured in a transport accident could not sue the estate of the tortfeasor if the latter died before the injured person satisfied the requirements of s.93, because the cause of action would not subsist against the tortfeasor at his death. It was submitted that Parliament could not have intended that persons in the process of meeting the requirements of the section should forever be barred because the tortfeasors died before the process was complete (compare s.8(b) of the Act). The appellant responded that an injured person in such a case could recover damages against the Commission pursuant to s.94(7). A difficulty with this response is that according to the appellant no liability has been incurred by a tortfeasor who dies before the Commission makes a determination and the injury meets the description of a "serious injury", for there is nothing but a liability contingent upon the happening of future events, and since no liability has been incurred, the Commission sustains no liability to indemnify under s.94(1). Section 95(a), which might have been intended to deal, amongst other things, with this difficulty, does not assist, for it requires the subsistence at the date of the tortfeasor's death of the cause of action against the tortfeasor. The difficulty might be met if "liability" in s.94(1) and (7) were to be construed as encompassing a contingent liability. See Bromilow & Edwards v. Inland Revenue Commissioners [1969] 1 W.L.R. 1180; affd [1970] 1 W.L.R. 128; Walters v. Babergh District Council (1983) 82 L.G.R. 235. The presence of the word "incurred" does not necessarily preclude this: Hawkins v. Bank of China (1992) 26 N.S.W.L.R. 562 at pp.572, 576 and 578. Such a construction is by no means certainly correct and can be criticised for treating the transmission of rights differently from the transmission of liabilities without the presence of words in the statute to justify the difference. The point is important, and we think it should be resolved by Parliament. Even if "liability" in s.94(1)and (7) does not extend to a contingent liability, that would not impel us to a different conclusion from that expressed above on the question whether a cause of action passed to the deceased's estate.

134. In our opinion the learned trial judge erred in holding that a cause of action for damages for the injury sustained by the deceased survived for the benefit of his estate, and thus there was no point in granting the application for leave to bring proceedings.

Application under s.93(4)(d)

138. In two grounds of appeal independent of, but subsidiary to, the ground already considered, the appellants contended that the provisions of s.93(4)(d) and s.93(6) were not satisfied by the respondent's application for leave. We do not think that the respondent as administrator of the deceased's estate is entitled to maintain an application under s.93(4)(d) for leave to bring proceedings. It is not easy to characterise the ability of a person injured in a transport accident to apply to a court under s.93(4)(d) as a cause of action within the meaning of s.29 of the Administration and Probate Act (compare Abbott v. Minister for Lands [1895] A.C. 425 at 431; Mathieson v. Burton [1991] HCA 56; (1971) 174 C.L.R. 1 at 23). In any event, the better view, it seems to us, is that "the person" who may bring an application under s.93(4)(d) is, and is only, the person whose degree of impairment has been determined by the Commission. We do acknowledge that it is possible by a liberal, yet selective, application of s.3(5)(c) to read s.93(4) as permitting a legal personal representative to bring proceedings if a court on the application of the legal personal representative has given leave. But such a reading is very strained and ceases to be open once regard is had to sub-s.(6).

141. That brings us to the ground relating to sub-s.(6). It appears to us that the requirement contained in sub-s.(6) that a court must not give leave under sub-s.(4)(d) "unless it is satisfied that the injury is a serious injury" requires a demonstration of the existence of a serious injury at the date of the determination of the application for leave. We accept that certain of the verbs in sub-s.(4) which are in the present (imperfective) tense have logically to be understood as being in the present perfect tense. But those verbs are all found in conditional clauses and it is a feature of such clauses in the English language that, even though their verbs denote actions anterior to those of the main clause, they are frequently expressed in the present tense. No such consideration applies to the conditional clause in sub-s.(6) or, more importantly, to the dependent clause in that sub-section. To read the latter clause as applicable to an injury no longer extant and therefore incapable of being long-term (where that consideration is relevant), whilst possible, is, we consider, a tortured construction.

145. As we have said, the appellants also contend that the injuries suffered by the deceased as a result of the transport accident were not serious injuries within the meaning of s.93(2) and (17) of the Act and that accordingly the requirement of s.93(6) was not satisfied. It is unnecessary for us to consider this ground of appeal in order to determine this appeal, but it may be desirable for us to do so in case this matter should go further. The real question is whether his Honour erred in being satisfied under s.93(6) that the injuries were a serious injury. That necessarily has to be considered as at the date of the death of the deceased. The appellants asserted that there was specific error on the part of the judge and that in any event his assessment or finding was plainly wrong. The specific error suggested was that his Honour did not judge the impairment by "comparison with other cases in the range of possible impairments or losses", as was said to be required by the test enunciated by way of guidance in the passage already quoted from Humphries v. Poljak. We do not accept this submission. Granting for the sake of argument that a judge is obliged to make the comparison mentioned, the judge is not required in his or her reasons to rehearse other actual cases or hypothetical examples and expressly compare the instant case with them: State of Victoria v. Glover [1998] VSCA 93 at 24 and 25 per Ormiston, J.A. and 35 and 36 per Tadgell, J.A. There is no reason to think that this very experienced judge, having stated detailed facts and set out the passage from Humphries v. Poljak, did not, in proceeding towards his conclusion, make the comparison to which that passage refers. That he made such a comparison might indeed be said to be shown by the fact that he referred to the rival submissions of counsel on whether the case was stronger than Stone v. Jarvis, one of the cases decided with Humphries v. Poljak, and described the submissions as helpful, even though he did not propose to make "a point by point analysis" of Stone v. Jarvis.

148. There being no specific error, the appellants can only succeed in their challenge to his Honour's assessment or finding by establishing that it was plainly wrong or wholly erroneous: Mobilio v. Balliotis. In our view, the appellants failed to do that. His Honour had the distinct advantage over this Court of seeing the respondent son and the brother of the deceased cross-examined extensively on their affidavits. (The appellants did not require the medical experts to be produced for cross-examination on their reports.) On the whole, he accepted the evidence for the respondent. He was impressed by the opinions of Mr. Wuttke and Mr. Bergman. He did not overlook the fact that the deceased did some light work and was able to fish. His Honour's finding was, we consider, well open to him.

153. Nevertheless, for the reasons given earlier, the appeal should be allowed and the application for leave to bring proceedings dismissed.