Barnett v Transport Accident Commission

[2001] VSCA 12

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 7549 of 1998

PAUL BARNETT

Appellant

v.

TRANSPORT ACCIDENT COMMISSION

Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2001
DATE OF JUDGMENT:	23 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 12

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Transport Accident Act 1986 – Assessment of impairment by reference to A.M.A. “guide-lines” – Contention that judge was in error in rejecting arguments put on behalf of appellant – Same arguments put to Court of Appeal – Appeal dismissed on basis that decision by trial judge was correct.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.G. Nash Q.C. with Mr. S.R. McCredie	J.N. Zigouras & Co.
For the Respondent	Mr. M.O’Loghlen Q.C. with Mr. A. Clements	TAC Law Pty. Ltd.

WINNEKE, P. (delivering the judgment of the Court): 

1. This is an appeal from a decision of Mandie, J.  On 25 May 1999 dismissing an appeal under the Victorian Civil and Administrative Tribunal Act 1998 from the decision of a Senior Member of the Tribunal on 24 September 1998.

1. The appellant, who was the unsuccessful appellant below, suffered injury in a transport accident on 25 April 1992 when he was hit by a car whilst riding his bicycle.  He was 16 years old at the time.  By virtue of the Transport Accident(Impairment) Regulations 1988, the methods to be used in determining the appellant's degree of impairment were as described by the "Guides to the Evaluation of Permanent Impairment", Second Edition, published by the American Medical Association. These are commonly referred to as "the AMA Guides" and the appeals both to the Trial Division and to this Court turned on their proper meaning and application to the condition of the appellant.

1. On this appeal the appellant sought to persuade us that the arguments which had been put on his behalf in the Trial Division had been wrongly rejected and that in the result his degree of impairment had been wrongly confirmed at 43 per cent when it should have been assessed at 45 per cent or more.

1. Having heard counsel for the appellant, we find ourselves altogether unpersuaded that there was error below.  In our opinion the decision of the judge was correct and for the reasons given by his Honour.  No further or other arguments having been advanced, it follows that the appeal must be dismissed.

1. We would add only this.  Although Mandie, J. deliberately refrained from expressing an opinion on the decision in Coverdale v Transport AccidentCommission (1999) 15 V.A.R. 240, we think that the learned President of the Tribunal was correct when he said in that case (at pp.243-4) that the provision in the Guides which allowed that the whole person impairment "may be expressed in terms of the nearest five per cent" was hardly appropriate to the function of the Tribunal under the legislative scheme granted by the Transport Accident Act.

1. For these reasons the order of this Court is that the appeal is dismissed.

1. The formal order is that the appeal is dismissed.  With the consent of the respondent, no order is made as to costs.