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Barry Lane
18 March, 2005  
The "serious injury" wars - Part Two

Barry Lane once more is in the trenches mining more nuggets from the Victorian Court of Appeal thinking on appeals from County Court decisions in serious injury cases. At last, there’s clarity – we think


imageDoubtless you will recall that in my previous report on this topic, which arose in light of the Court of Appeals decision in Dodoro v Knighting and Transport Accident Commission I agonized about what form an appeal would take under the new serious injury provisions of s.134AB of the Accident Compensation Act 1985.

Was it going to be a hearing de novo or some other form of review? (See Barry’s previous missive)

It can now confidently be revealed from the courts decision in Barwon Spinners Pty Ltd v Podolak (Ormiston, Chernov and Phillips JJA) Barwon that construing s.134AD of the Act is no easy task.

The provision requires the court to decide the question of serious injury for itself on an appeal aided by new material if that were thought to be necessary.

If you thought that meant that error below, usually in the County Court, became irrelevant after the enactment of s.134AD then youd be wrong. As the court said in paragraph 39 of its judgment:

... (that) proposition is wrong: it is too absolute. Error below is always significant on appeal (save only the appeal by rehearing de novo); for, obviously, unless affected by error the order below will not be disturbed. All that is arguably made irrelevant by s.134AD is the type of error commonly identified (by reference to House v R and Australian Coal and Shale Employees Federation v Commonwealth) in appeals against the exercise of discretion.

Warming to the concept of error below, the court went on to recognise, as both the court in Mobilio v Balliotsis (1998) 3 VR 833 and the High Court in Fleming v Hutchinson (1991) 66 ALJR 211 had done some time ago, the importance of the decision of the lower court because there the judges were familiar with the range of conditions within which the instant condition occurs, as the High Court said in Fleming.

The court then observed at paragraphs 48, 49 and 50:

That is still the case. It is true that the emphasis on the “elements of fact, degree and value judgment” led the Court in Mobilio to its conclusion about the test on appeal, but even though that test must now be taken to be rejected by statute, the nature of the decision under appeal is not thereby altered. Where questions of degree and value judgment arise, it simply becomes the more difficult to establish error, as an appellant must always do. The decision as to serious injury may not be a discretionary judgment and may no longer be equated with an assessment of general damages; but nor is it in the same case as a finding of negligence. The determination that an injury is or is not serious injury depends upon fixing it within a range of comparable conditions and so, as the High Court put it, upon “the opinion of a judge familiar with a range of conditions within which the instant condition occurs”. Some County Court judges are dealing with such cases almost daily and have become expert in the area; they see the worst and the least of like cases and are in the best position to assess a given case within a spectrum of such cases. That is an advantage which can be highly significant and it is one not ordinarily enjoyed by the appellate court. Therefore, according to long-standing authority, it is one to which an appellate court should have regard, giving it such weight as it deems appropriate – and to do so is not to disobey the statutory injunction to “decide for itself” the issue of serious injury.

To put it shortly, the appellate function will always be encouraged by an appellant’s demonstrating specific error, whether of fact or law. If it can be shown that the judge at first instance mistook his task or, for instance, erred in his understanding of the facts, the court must reconsider the case as a whole in order to confirm or to reject the decision below according to its own opinion on appeal on the question of serious injury. (Indeed it may even have to remit the case for further hearing if, say, one or other of the parties has not had a proper opportunity to establish its case or perhaps some finding of fact is needed which cannot be made without a rehearing.) But specific error is not a necessary prerequisite in view of s.134AD; nor is it enough to ask if the decision below is “plainly wrong” – though if it is, no doubt the appellate court will not hesitate to substitute its own opinion for that expressed at first instance. It will always be enough if, after due consideration of the material below (and any further evidence that may be admitted on appeal subject to the usual limitations), the appellate court is of opinion that the decision below was wrong, though before arriving at such a conclusion it will be necessary for the court to have regard to any relevant advantages enjoyed by the trial judge, including, when appropriate, the familiarity of the County Court judge with the range, or spectrum, of such injuries as that in question and the place within that range to be taken by the particular condition of the applicant.

Were it otherwise, it is difficult to see why the new legislation would not be simply encouraging an appeal after every decision on a serious injury application in the County Court. It is no longer necessary to obtain leave: s.134AC. The worker, who was often treated as not needing leave to appeal after failing below, would appeal if only because his case could then be re-argued altogether. He would not be prejudiced by the adverse determination in the County Court (save as to the costs of the appeal which, when an applicant is impecunious, can sometimes be a price more apparent than real). If the worker’s application succeeded in the County Court, the Authority would appeal in order to have its case re-heard and, again, simply re-argued: for it too would not be disadvantaged by the decision below and, because of its deep pockets, costs would not be an impediment. If that were the position brought about by s.134AD, the work of the County Court would be largely transferred to the Court of Appeal, which is already fully occupied, and the cost to the public purse of each application often doubled. Fortunately that is not the position, as we see it, under s.134AD.

Phew, for a moment there your correspondent thought that the court would actually have to plough through all those affidavits, medical reports, tax returns and surveillance videos. Thank goodness for all concerned, that will not be the case. Parties will still have to focus on specific error etc.

So far as the four cases which gave rise to the appeals are concerned, the appellant Authority was successful in two because the judge or judges who found for the workers at first instance were not up to snuff when it came to giving reasons: in the Barwon case the judge had penned only four pages of reasons so there was obviously appellable error there and in the other case St Laurence Community Services (Barwon) Inc v Gledhill the relevant judges reasons were also fairly brief and otherwise deficient so far as the court was concerned.

Barwon was sent back for rehearing in the County Court and the appeal in St Laurence was allowed and the workers application dismissed due to technical problems with the application which only became apparent during the appeal.

The other two appeals concerned cases where the workers applications had been refused by the trial judge or judges and the court couldnt find anything wrong with the careful and careful and comprehensive reasons respectively provided. Therefore the appeals were dismissed.

So there you have it, business as usual for the Court of Appeal with s.134AB serious injury appeals despite s.134AD of the Act.