RICHARDS (bnf) RICHARDS v TERRITORY.INSURANCE OFFICE

Motor Accidents (Compensation) Appeal Tribunal

Asche J.

1 and 30 June 1987 at Darwin

Motor Accidents (Compensation) Act - Appeal de novo - "severe and permanent facial disfigurement" - breadth of meaning of word "severe".

Evidence - Inspection of injuries by judge - Weight to be given to other evidence differing in degree from judge's observations.

Evidence - Difference between "inspection" and "view".

Cases aI?plied:

Payton & Co v Snelling Lawford & Co. (1901) A.C. 308 Unsted v Unsted (1947) 47 S.R. (NSW) 495
Scott v Numurkah Corporation (1954) 91 C.L.R. 300

Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent

C. McDonald Cridland & Bauer
P.B. Bracher Ward Keller

asc870054
IN THE MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
DARWIN REGISTRY No. MB of 1986
BETWEEN:

LUKE JOHN RICHARDS (by his next friend LINDA JULIAN RICHARDS)
Applicant

AND:
TERRITORY INSURANCE OFFICE
Respondent

CORAM:	Asche J.

REASONS FOR JUDGMENT
(Delivered the 30th day of June 1987)

The applicant Luke John Richards who brings these proceedings by his mother, as next friend, was born on 10 June 1980.	On 9 February 1983 when he was 2½ years old he sustained a very nasty accident when he stepped in front of a car being driven along Trower Road.	He sustained extensive lacerations of face, mouth and scalp, loss of several teeth, head injury with cerebral irritation and multiple abrasions.	Emergency hospital treatment involved a tracheostomy to maintain a safe airway during the initial period of intensive care.	The extensive lacerations were sutured.	According to Mr Watson a plastic surgeon who first saw him in 1985 and has seen him subsequently he has made an excellent recovery but on 24 September 1985 Mr Watson

observed extensive scarring of the face and a large tracheostomy scar on the anterior aspect of the neck.	Mr Watson refers to 6 scars on the face, the tracheostomy scar and a scar on the top of the scalp.	The scar on the top of the scalp was covered by hair and four of the scars on the face do not seem to have been conspicuous by the time Mr Watson saw him.	However Mr Watson refers to two scars which were then particularly conspicuous, namely a scar across the forehead tattooed by road dirt and a spreading scar on the left cheek.	Mr Watson was then of the opinion that these scars could be improved by surgical scar revision but that should be postponed until Luke is in his teenage years.	Mr Watson is of opinion that these scars and the tracheostomy scar will last the rest of his life.		He believes that surgical revision would produce some improvement of the forehead scar but is very unlikely to improve the left cheek scar.	Two of Luke's permanent teeth have been lost.

On 28 November 1985 application was made on Luke's behalf for payment of compensation under the Motor Accidents (Compensation) Act.

It is not disputed that Luke was at all material times a resident of the Territory.	S. 7 of the Act provides that, where a resident of the Territory suffers injuries in or as a result of an accident that occurred in the Territory there is payable to or on behalf of that person such benefits as are provided for in the Act.

Bys. 12 the right of any person and the amount of a benefit under the Act shall be determined by the Board of the Territory Insurance Office. By the combination of s.
27(1) and (2) that determination can be made in the first instance by the General Manager of the Board as delegate of the Board but any person aggrieved by that determination may request that the matter be referred to the Board and upon such request being made within the time allowed the General Manager must refer the matter to the Board.

On 15 May 1986 the General Manager determined that Luke was not entitled to benefits under the Act.	On request being made on Luke's behalf the matter was referred to the Board which, on 4 July 1986, upheld the determination of the General Manager.

Bys. 29 a person aggrieved by a determination of the Board may refer the matter to the Motor Accidents (Compensation) Appeal Tribunal which is established pursuant to s. 28 and is constituted by a judge of the Supreme Court.

That referral was sought in this case and the matter now comes before me.

S. 29(3) provides:

"Where a matter is referred to the Tribunal, it shall conduct such hearings into the matter as it thinks fit and may make such determination as the

Board could have made thereon as the Tribunal considers proper in the circumstances having regard to the intention of the Act, and such determination is binding on the Board."

Bys. 29(4) a hearing conducted under this Part by the Tribunal is a hearing de novo.	Emphasis is given to the appropriateness of a hearing de novo because bys. 27(6), neither the General Manager nor the Board is required to give reasons for his or its decision under the Act.

So far as relevant to this cases. 17(1) provides that a resident of the Territory, having suffered injury as a result of an accident (which, again for the purpose of this case is defined ins. 4 as "an occurrence on a public street •.. caused by or arising out of the use of a motor vehicle"), and who survives that accident for a period of 3 months "shall, where he has suffered an injury specified in Column 1 of the Schedule, be paid the amount of compensation equal to the percentage of the prescribed amount in Column 2 of the Schedule opposite the specification of the injury in Column 1."

There is only one category into which Luke must fall if he is to receive compensation under the Act; and that is the category in Column 1 described as:-

"Severe and permanent facial disfigurement."

If he comes within that category then pursuant to Column 2 he is entitled to receive 50% of the prescribed amount.	The prescribed amount in this case and according to the legislation in force at the time of the accident was
$28,000.	Motor Accidents Compensation Act 1979: s. 17(7): (as amended by Act No. 47 of 1982).	If successful Luke therefore must receive $14,000; no more; no less.	There is no provision for gradation of injuries within the prescribed category.

The question before me, as no doubt it was before the General Manager and the Board, is a deceptively simple one.	Do Luke's injuries constitute severe and permanent facial disfigurement.	Indeed it can be reduced further, for it is not disputed, and could not be disputed on the evidence of Mr Watson that Luke has suffered permanent facial disfigurement.	The sole question is whether that facial disfigurement is "severe".

S. 17(5) states:-

"	For the purposes of this section and of the Schedule, facial disfigurement shall not be taken to be severe where -

if the person underwent suitable medical treatment, the disfigurement would not be severe; and

if the person underwent suitable medical treatment, the disfigurement would be removed."

As to sub-section (b), it is clear from the evidence of Mr Watson that medical treatment would not remove the disfigurement.	He says quite positively that "the present scarring will last for the rest of his life". As to sub-section (a) Mr Watson says that as to the scarring on the left side of the mouth there would be a 'rather slim chance" of significant improvement by corrective surgery.
He says that he would expect "some" improvement to the scar on the forehead.	He says that if such an operation were done the road dirt ingrained in the skin could be excised and the scar would then "look much as now but wouldn't have the road dirt tattooed in".	It would seem from this evidence that while there may be some minor improvement to the forehead scar I should approach this case on the basis that for all practical purposes the appearance of the scars will not alter in the future.

The tracheostomy scar is quite conspicuous but that is the bottom part of the throat and in my view and in the terms of the schedule cannot be regarded as a "facial" disfigurement.	The Macquarie Dictionary defines "face" as "the front part of the head from the forehead to the chin", as does the Oxford Dictionary.	"Facial" is defined as "of the face".	I must therefore disregard this injury.

Photographs of Luke taken in 1985 were tendered (Ex's B, c  &  D).	A photograph of Luke taken in 1983 before

the accident was also tendered (Ex "A").	The three sets of 1985 photographs show quite conspicuous scarring.

So far as Luke's present appearance a request was made that I see him in Chambers and this was consented to by counsel for the Territory Insurance Office.	My own observations were that the scarring is not now as conspicuous as in 1985 although still plainly visible.

Had the matter come before me in 1985, and judging from the photographs, I do not think I would have had any hesitation in accepting that the disfigurement was severe. My present observations are to consider it now somewhat of a borderline case.	In doing that, however, I must take into account the purport of Mr Watson's evidence that there will hereafter be little improvement.	The word "severe" is coupled with the word "permanent" in the schedule i.e. the disfigurement must be both severe and permanent and I take that to mean that I must be satisfied that whatever degree of disfigurement I now accept (if I accept any degree of severity) I must be satisfied will remain permanently or at least for a substantial period of his life.	The evidence of Mr Watson, however, satisfies me on the question of permanence.	I return therefore to the question as to whether the disfigurement is "severe".

The most appropriate meaning of the word severe in this context given by the Macquarie Dictionary is "serious". I am not sure that this is much assistance.	The difficulty is that there are degrees of severity as there are degrees of seriousness and the dividing line between "severe" and "not severe" is very much the same problem as determining when a creek becomes a river or a hill becomes a mountain.
Quite obviously there are cases where one would have no doubt that a disfigurement was severe e.g. a face hideously scarred from burning.		But that does not mean that much lesser injuries may not come within the term.	Koscuisko may be less than one quarter the height of Everest but still rank as a mountain.	There are two ends to the scale, but the higher and lower ends must still come within the accepted use of the general term.

Left to my own observations I would, I think, have taken the view that the disfigurement is not now severe.
But I am not so positive that there cannot be room for disagreement and in those circumstances my inspection is only part of the evidence.

In a passing off case Payton & Co. v Snelling Lawford & Co. (1901) A.C. 308 at 311 Lord McNaghten said, "the judge looking at the exhibits before him and also paying due attention to the evidence adduced must not surrender his own independent judgment to any witness".

This statement was accepted by the High Court in
Scott v Numurkah Corporation (1954) 91 C.L.R. 300	at 313 in the following passage:-

"Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point".

In each of the above quotations the important phrase is "and also paying attention to the evidence adduced".	The judge's direct inspection of an object or a person to determine a question of fact is evidence and indeed has been described as "real" evidence; although I share the doubts expressed in Phipson - 13th Edition - paras 1.05, 1.06, as to whether this is a very helpful way of expressing it; for that carries an odious and unacceptable comparison with other forms of evidence implying that such other _forms may lack reality.	Inspection is a well tried method - see the examples collected in Wigmore paragraph 1152, - and it is the second of Blackstone's seven species of trial in civil cases.	But it remains part of the body of evidence before the court.	As such it differs from a view, which is not evidence but a method of enabling the court to understand the evidence.	Unsted v Unsted (1947) 47 S.R. (NSW) 495; Scott v Numurkah Corporation (supra).

•

No doubt the court will normally give great weight to the evidence of its own eyes but it must still pay regard to any other evidence which may be adduced, particularly where that evidence concerns an expression in which the boundaries of meaning are blurred.	In this case the evidence is not only what I have seen but what a surgeon of considerable qualifications and experience in dealing with facial injuries has seen.	Mr Watson is of opinion that there has been very little change in the extent of scarring from 1985.	He describes the scarring on the left cheek as most conspicuous and very ugly with little prospect of improvement.		His evidence, taken as a whole indicates that the facial disfigurement comes with the boundaries of the expression "severe".

Were I convinced on the basis of my own inspection that there was no real possibility that the disfigurement could be described as "severe" I might well differ (albeit respectfully) from Mr Watson.	But I am not convinced to that degree.		My own observations do no more than put the disfigurement slightly outside the borderline of that expression.	Mr Watson's evidence puts it significantly inside that borderline.	The onus is on the applicant to establish the case but on the weight of the evidence as a whole and perhaps by the narrowest of margins the scales turn in his favour.

w

In the event I would allow the appeal.	I note that
35(1) provides that where a payment under this Act is required to be made to a person who has not attained the age of majority that payment may be made on behalf of that
person to the Public Trustee or to the guardian or other
person who, from time to time, has the responsibility for the immediate care and welfare of that person.	s. 35(2) provides that a payment made in pursuance of sub-section (1)
is a full discharge of the Board's obligations in respect of that payment and it is not bound to see to the application of the money so paid.

Obviously in many cases the direction should be that the money be paid to the Public Trustee.		However in this case the amount to be paid is $14,000-00 and there is no reason to believe that Luke's mother will not use the money properly for the welfare of the child.	She should be informed that she holds the money as trustee for the child but there is no reason why she should not expend part or whole of it before Luke attains his majority providing that such expenditure can be directly related to his welfare.

The formal orders will be:-

Allow the Appeal.

Direct that the sum of $14,000-00 be paid within 28 days by the Respondent to Linda Julian Richards as guardian and next friend of the Applicant Luke John Richards to be held by her in trust for the said Luke John Richards
to invest such sum in authorised securities to
pay therefrom such moneys as from time to time may be directly needed for the welfare of the said Luke John Richards and to pay any balance and accrued interest remaining to the said Luke John Richards on his attaining 18 years of age.

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