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Barry Lane
28 August, 2007  
A "surge" in the serious injury wars

Barry Lane provides some serious reading about serious injury cases in Victoria. A new front has opened up with the High Court entering the accident compo battleground. No doubt all the smoke will soon be cleared

imageOn August 3, 2007, lawyers acting on behalf of “serious injury” claimant Brett Dwyer fixed bayonets and lobbed a hand grenade into Victorian WorkCover Authority’s bunker.

The High Court (Hayne and Callinan) has given leave to appeal from the Victorian Court of Appeal’s (Prez Maxwell, Eames and Neave) dismissal of Dwyer’s appeal from a County Court judge’s refusal of his application.

Here’s the transcript of the High Court application. Here’s the thinking from the Court of Appeal. Here’s the decision from the County Court judge.

Dwyer’s case is the first High Court appeal on the “serious injury” provisions of the Accident Compensation Act 1985 for quite some time and is the only appeal since the enactment of section 134AD of the Act in 2000.

Avid followers of my dispatches from the front on February 12, 2005, March 18, 2005, February 12, 2007 and March 4, 2007 will be aware that I’ve been very interested in how the Court of Appeal would deal with section 134AB “serious injury” appeals after section 134AD mandated the court to consider appeals “for itself” on the basis of the evidence led below and any other evidence it thought necessary.

Although the court mentioned section 134AD of the Accident Compensation Act in Barwon Spinners Pty Ltd v Podolak (Ormiston, Chernov and Phillips) [2005] VSCA 33, it went on to say that appellants should continue to concentrate their appeals on error below.

That’s exactly what’s happened ever since.

As the Prez observed in Allsmanti Pty Ltd v Ernikiolis (Maxwell, Ashley and Neave) [2007] VSCA 17, earlier this year:

“Of course, Parliament has made it perfectly clear in s.134AD that this court must decide for itself whether a worker has a serious injury as defined. My own view as president of the court, however, is that to have the Court of Appeal sitting as – in effect – a medical tribunal is not a good use of scarce judicial resources. Having a full rehearing on appeal is apt to undermine the conscientious work of County Court judges at first instance, since it is an invitation to the losing party to rerun the facts in the hope that the appeal court will take a different view.”

However, that “perfectly clear” understanding of Parliament’s intention has not actually resulted in the court giving effect to it.

Where the court has allowed an appeal, whether from a worker or employer, it has invariably remitted the case back to the County Court for rehearing – notwithstanding that Barwon Spinners and/or the existence of s.134AD have been acknowledged in its reasons.

And the Court of Appeal has done this even in cases where it has examined every nook and cranny of the trial judge’s reasons and rehearsed a good deal of the medical and other evidence in the case.

Sometimes it has confined itself to a line-by-line dissection of the trial judge’s reasons in its quest to detect appellable error. Where the court allows the appeal, the usual finding is that the judge’s reasons did not sufficiently expose his or her path of reasoning.

Hamadi v KAB Seating Pty Ltd (Chernov, Ashley and Neave) [2007] VSCA 151, is a recent example.

However, where the trial judge has rejected the applicant’s case on credit grounds, as occurred in Cakir v Arnott’s Biscuits Pty Ltd (Maxwell, Buchanan and Neave) [2007] VSCA 104, it’s somewhat puzzling to understand why, apart from giving the applicant a “second bite of the cherry”, the court would send the case back to the County Court for retrial.

imageIn some credit cases, like R & D Vodusek Pty Ltd v Evans (Warren CJ [pic], Nettle and Neave) [2007] VSCA 53, for example, the court will refer the case back for retrial because it has not had the benefit of seeing the claimant examined.

I find this curious because as far as I’m aware all proceedings in the County Court are recorded on videotape and when an appeal is lodged the registrar of the Court of Appeal asks the County Court to preserve the tape.

If the Court of Appeal or a party to an appeal so chose, they could have all the material that was before the trial judge to enable the court to evaluate all the evidence including the “subtle influence of demeanour”.

In the latest case considered by the court, Wills v A C Neilson Pty Ltd (Warren, Nettle and Neave) [2007] VSCA 159, in which judgment was handed down on August 23, 2007, the court wasn’t spooked by Dwyer in any way.

Wills was an appeal from the County Court by an applicant whose application had been refused on credit grounds. On appeal, the principal ground relied on by the worker was alleged inadequacy of the trial judge’s reasons.

In concurring in the dismissal of the appeal Neave, who wrote the principal judgment, said:

“Section 134AD of the act requires this court to decide for itself whether the injury is a serious injury, on the evidence before the judge who heard the application and any other evidence which this court may receive under any other Act or rules of court.

“The onus is on the appellant to persuade the court that the decision below should be reversed or set aside. Even if it cannot be established that the trial judge made a specific error, the appeal must be allowed if the court is satisfied that the decision below was wrong. In deciding whether this is the case the court will give weight to the advantages of the trial judge in hearing and seeing the witnesses. As this court said in Barwon Spinners Pty Ltd v Podolak:

‘If a finding of fact is attacked, it is for the appellant, as the attacker, to carry the burden of persuasion, and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue … It is common, too, in cases that canvass the appellate function, to find express mention made of the obligation resting on the appeal court to recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses’.”

At other times the court has actually gone into the evidence below to the extent that it has viewed surveillance film tendered at the trial.

In Sumbul v Melbourne All Toyo Wreckers Pty Ltd (Chernov, Nettle and Redlich) [2006] VSCA 292, which I mentioned in my dispatch on February 12, 2007, a majority of the court (Chernov and Nettle) accepted the invitation of the appellant’s counsel to view the surveillance video.

After viewing the film those judges agreed with the trial judge’s assessment of it and the applicant worker’s appeal was dismissed.

As a result of Dwyer’s case, however, might all this be about to change? The sole basis on which leave to appeal was granted was that the Court of Appeal failed to decide the issue for itself.

imageFormer attorney general in the Cain and Kirner governments, James Harley (call me Jim) Kennan, SC, (pic) successfully argued that the Court of Appeal in Dwyer spent most of its time nitpicking the trial judge’s reasons (which they found to be “exemplary”) rather than retilling the already ploughed ground itself.

How Dwyer plays out in the High Court is anyone’s guess, although from my reading of the transcript I thought that the worker had the edge.

What effect will Dwyer have on pending appeals? In Allsmanti, the Prez said:

“In my view, the interests of parties to these proceedings would be amply protected if appeal to this court was limited to a question of law. A serious injury application is, after all, only a gateway. It is not the substantive common law proceeding. If the ‘question of law’ requirement were introduced, a decision like the present – where the judge has seen the applicant and considered very carefully all of the evidence and all of the credit questions – would not be appellable unless it could be shown that the decision was not reasonably open on the evidence before the court. There is, I think, an analogy with what this court does in sentencing matters, where we are astute to respect the judgments made by the sentencing judge who has conducted the substantive proceeding and seen the witnesses and heard the submissions. We only interfere where something has gone badly – obviously – wrong.”

And just to ram the point home, in R v Hay (Maxwell Buchanan and Whelan), [2007] VSCA 147, a sentence appeal handed down on July 24, 2007, the Prez said:

“Secondly, it is essential that the difference in function between the sentencing judge and the appeal court be clearly understood. Our criminal justice system gives the sentencing function to the judge, not to the appeal court. The sentencing judge is uniquely placed to draw together all of the arguments for and against, to evaluate all of the matters sought to be brought to bear on the discretion which he or she has to exercise. That is where the sentencing task should be carried out, subject always to the supervisory role of the appeal court.

“The appeal is not a second bite at the cherry. It is not an opportunity to re-run arguments in the hope that three different judges will be persuaded to take a different view from the sentencing judge. The question for the appeal court is not what we would have done had we been called on to sentence the offender but whether error has been demonstrated, such that we can be satisfied that the sentencing discretion miscarried. This court will only interfere where it is demonstrated that something has gone clearly wrong.”

Given the Court of Appeal’s penchant for “tinkering” in sentence appeals and its record in “serious injury” appeals there might be the odd judge in the County Court who thinks there’s a bit of blue sky between the Prez’s rhetoric and the court’s performance.