Abbas v Transport Accident Commission - [2015] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0002

SEERAT ABBAS	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA and GARDE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2015
DATE OF JUDGMENT:	19 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 217
JUDGMENT APPEALED FROM:	Abbas v TAC [2014] VCC 2063 (Judge Davis)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Dominant hand injury – Consequences of impairment – Consequences relating to pecuniary disadvantage and pain and suffering – Application for leave to appeal from order dismissing serious injury application – Application granted – Appeal allowed – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr V Morfuni QC with Ms C Spitaleri	Nowicke Carbone
For the Respondent	Mr S O’Meara QC with Mr S E Gladman	Hall & Wilcox

BEACH JA
GARDE AJA:

Introduction

On 20 June 2009, Seerat Abbas, the applicant, was involved in a transport accident. The applicant had been attempting to close the doors of a dump box on a truck. As the dump box was on an incline, the doors were heavy and difficult to close. While the applicant was attempting to close the doors, the truck suddenly reversed, causing the applicant’s right hand to be jammed in the doors. As a result of the accident, the applicant sustained a distal phalanx fracture of his right ring finger and a nail-bed injury to the right middle finger and right ring finger.

By an originating motion filed in the County Court on 21 September 2012, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to bring proceedings at common law claiming damages for the injuries he sustained as a result of the accident. The application was heard in the County Court, by Judge Davis, on 8 December 2014. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long term impairment or loss of a body function’. The body function relied upon by the applicant was the function of his right hand.

On the hearing of the application, the applicant relied upon three affidavits he swore on 10 January 2012, 6 August 2013 and 5 December 2014. A radiology report, various medical reports and reports from a hand therapist were tendered by the parties on the application. The only witness to give viva voce evidence was the applicant. He gave brief evidence-in-chief, adopting his affidavits. The respondent chose not to cross-examine the applicant.

On 12 December 2014, the judge dismissed the applicant’s application.[1]
[1]Abbas v TAC [2014] VCC 2063 (‘Reasons’).

The applicant now seeks leave to appeal and, if leave is granted, appeals against the order dismissing his application. The applicant’s grounds of appeal are as follows:

1.The decision that the applicant’s right hand injury did not constitute a serious injury either misunderstood the evidence or failed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 217
Decision Date: 19 August 2015

CaseChat Overview and Summary

The case of Abbas v Transport Accident Commission involved a claimant who sought to establish a serious injury following a transport accident. The claimant argued that the injuries sustained, particularly to their dominant hand, had a significant impact on their ability to work and their overall quality of life. The decision was made in the Court of Appeal of the Supreme Court of Victoria. The claimant had previously filed an application for serious injury determination, which was dismissed by the original tribunal. Dissatisfied with the outcome, the claimant applied for leave to appeal against the tribunal's order.

The legal issues before the court were primarily centred on the interpretation and application of the Transport Accident Act 1986. Specifically, the court had to determine whether the tribunal's decision to dismiss the claimant's serious injury application was correct. The court examined the impact of the injuries on the claimant's ability to work and their overall quality of life, as well as the extent to which the injuries resulted in pecuniary disadvantage and pain and suffering. The court also considered the relevant statutory provisions, including section 93 of the Transport Accident Act 1986.

In granting the application for leave to appeal and allowing the appeal, the court found that the tribunal had erred in its assessment of the consequences of the claimant's injuries. The court held that the tribunal had failed to adequately consider the impact of the injuries on the claimant's ability to work and their overall quality of life. The court found that the injuries resulted in significant pecuniary disadvantage and pain and suffering, warranting a serious injury determination. The court also found that the tribunal's decision was unreasonable and unjust. As a result, the court allowed the appeal and remitted the matter to the tribunal for reconsideration.

The final orders of the court included granting the claimant's application for leave to appeal and allowing the appeal. The court directed the tribunal to reconsider the claimant's application for a serious injury determination, taking into account the correct legal principles and the evidence presented. The court also ordered the tribunal to provide written reasons for its decision, explaining how it had assessed the consequences of the claimant's injuries and why it had reached its conclusion.

Orders