Foot-sloggers and camp-followers pressed into service for one side or the other in the “serious injury” wars will recall that last August I reported a “surge” when Justices Hayne and Callinan gave Brett Dwyer leave to appeal from a finding by the Court of Appeal (Prez Maxwell and Justices Eames and Neave) dismissing his appeal from a decision of a County Court judge who refused his “serious injury” application for leave to commence common law proceedings.
By the time Brett got to the High Court it’s likely he was a bit despondent about his prospects of ever receiving “justice” from the Victorian court system.
Any increase in his levels of anxiety and depression resulting from his pursuit of “justice” should be be compensable if he can ever get the merits of his case to a common law trial.
The nub of Brett’s complaint to the High Court was the Court of Appeal’s preoccupation with “specific error” below to such and extent that since the enactment of s.134AD by the Accident Compensation (Common Law and Benefits) Act 2000, the Court of Appeal has been constitutionally incapable of coming to grips with what should have been a lay down misere, namely, that on an appeal it had a statutory obligation to “decide for itself” the merits of the applicant’s case for “serious injury” leave.
Just to remind those not familiar with the provision, it reads as follows:
“On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.”
Ever since the Court of Appeal (Justices Ormiston, Chernov and JD Phillips – all now retired) decided Barwon Spinners in 2005, the court has been spinning like a school yard top trying to come up with some acceptable formula to trump what was the plain and obvious meaning of the words in s.134AD.
In their search for meaning, numerous appeal judges have relied on the status of the court as the peak judicial body in Victoria, the “specialist” skills developed by County Court judges hearing “serious injury” applications day after day (lucky sods and sodettes), whether the decision at first instance was a “discretionary” one in terms of House v The King (1936) 55 CLR 499 and having a second bite of the cherry if the court substituted a merits review for a search for “specific error”.
That didn’t cut any ice with the High Court, which unanimously decided last week that the phrase “decide for itself” means exactly that.
Of the various signposts erected by the Court of Appeal in its quest for enlightenment, the High Court said:
“This confluence of ideas distracts attention from the terms of the imperative requirement of s.134AD with respect to determination of the question ‘whether the injury is a serious injury’. Where it operates, s.134AD does so despite anything to the contrary which might be deduced from s.74 of the County Court Act [the general County Court appeal provision] or from House v The King. Barwon Spinners should not be accepted as providing a proper guide to the construction of s.134AD.”
The court went on to say:
“To the suggestion that this view [that the Court of Appeal should decide for itself whether the applicant suffered a ‘serious injury’ or not] of the legislation fails to pay regard to the status and role of the Court of Appeal, as the highest court of the state and as a general court of appeal, and to the appropriate deployment of its judges given the nature of the decisions to be made and the risks of inconsistent decision-making between its judges because they are ‘rarely exposed to physical evidence of this kind’, the answer is threefold. First, it is what the legislation says. Secondly, it is what the minister implied to be the purpose of the legislation, aiming to restore rights to damages subject to conditions. Thirdly, it arguably reflects the compromises inherent in achieving such a purpose. It centralises the ultimate decisions on such matters in the Court of Appeal with its comparatively small cohort of judges, having the consequence that a fair degree of consistency is expected to emerge in a relatively short time. Any amendment of these arrangements is, as Maxwell P recognised, a matter for Parliament.”
The funny thing about all this is that if one reads a few of the Court of Appeal decisions since Barwon Spinners, and there have been plenty, one will observe the court dicing, slicing and dissecting the trial judge’s reasons with surgical precision to reveal whether the hapless County Court judge is guilty of “specific error”.
It usually takes 20, 30 or more pages of close analysis of the plaintiff’s evidence and the numerous medical reports before a “eureka” point is reached.
After all that one would have thought that it would have been just as easy for the court to substitute its own conclusions on the evidence, which, barring appeal to the High Court, would have been final rather than remit the application for re-hearing with the risk of a further appeal to the court from the losing party on the re-hearing.
In any event, the jig’s up now. From here on in, barring parliamentary intervention, appeals to the Court of Appeal on “serious injury” applications should be reviews on the merits.
Perhaps this is an appropriate moment to consider the whole question of appeals, at least to intermediate appeal courts.
It seems to me that a decision should be made one way or another – either have an appeal on the merits where everything is up for grabs, a “second bite of the cherry” so to speak, or get real about what constitutes “legal error” below.
Over the last 20 or 30 years there has been a substantial devaluation in the concept of legal error to the point where it has all become a little farcical.
For example, when a trial judge made adverse credit findings in the past, an appeal court would rarely touch the case.
But now, as cases like Whisprun v Dixon indicate, adverse credit findings are just an additional challenge for an intermediate appeal court.
In Whisprun, the majority (Gleeson CJ, McHugh and Gummow JJ) agreed with the trial judge’s assessment of the plaintiff’s case and that it was destroyed by her lack of credibility, whereas Justices Kirby and Callinan sided with the NSW Court of Appeal. It’s all very messy.
The majority said:
“In his judgment, Newman J set out many inconsistencies between Ms Dixon’s account of what she could and did do and what other evidence showed that she did do. This evidence showed her walking briskly around Sydney, attending race meetings, watching her daughter ride horses, riding a horse herself, driving cars and horse floats, riding on a jet ski and drinking and dancing at a wedding. The learned trial judge also took into account Ms Dixon’s evidence that her relationship with Mr Cross, the father of her daughter, had broken up owing to her mood swings and that she told some of the doctors they were still together. His Honour concluded that ‘the matters raised in cross-examination with the plaintiff and her responses to them effectively destroyed her credibility’. Because the existence of her symptoms depended on Ms Dixon’s credibility, his Honour was not satisfied that she suffered from post Q fever chronic fatigue syndrome.
Having read the whole of Ms Dixon’s evidence, we are not surprised that his Honour made the findings that he did in respect of her credibility. Indeed, as is so often the case, his Honour’s summary of her evidence and his findings do not convey the full picture of her lack of credibility, a picture that can only be obtained from reading the whole of her evidence. By the time her lengthy cross-examination had finished, the picture of her state of health to which she had deposed in evidence-in-chief had been destroyed. She may well be sick – but it is certain that her illness does not affect her to the extent that she claimed in evidence and recited to doctors. Later, it will be necessary to return in detail to this evidence.
The Court of Appeal held that Newman J had not properly considered Ms Dixon’s case. The court’s reasons were prepared by Heydon JA, Beazley JA and Davies AJA simply agreeing with his judgment. The Court of Appeal held that Newman J had erred in:
- concluding that Ms Dixon’s condition rested on subjective symptoms;
- failing to make any findings about the existence of symptoms which were observable by the medical experts for themselves, and which they had taken into account;
- failing to assess the totality of the medical evidence in light of the symptoms observed by medical experts which did not depend on Ms Dixon’s own history, and in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.
In particular, the Court of Appeal held that the trial judge had erred in failing to consider whether Ms Dixon had symptoms that were observable to medical practitioners. If such symptoms existed, then her case did not depend entirely on her credibility. The court also held that, in assessing Ms Dixon’s credibility, Newman J had placed undue weight on trivial discrepancies and had not taken account of the fact that her condition might have impaired her memory.
The Court of Appeal said that the ‘essence of the trial judge’s reasoning was to conclude that once the plaintiff’s credit and her reliability was damaged in the ways he set out, no further inquiry was called for’. He ‘made no reference to the large quantity of medical evidence, most of which pointed in one direction’. The court said that, having found the witness unsatisfactory in various respects that could be checked, Newman J inferred that she was unsatisfactory in all respects.”
Why wouldn’t a plaintiff who’s been disbelieved by a trial judge not chance an appeal when, as we’ve seen in Whisprun, eight appeal judges looked at the question of a plaintiff’s lack of credibility and five of the eight didn’t think it was fatal?