Bayliss v Transport Accident Commission - [2004] VSC 102

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6737 of 2003

SHANE BAYLISS	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2004
DATE OF JUDGMENT:	1 April 2004
CASE MAY BE CITED AS:	Bayliss v TAC
MEDIUM NEUTRAL CITATION:	[2004] VSC 102

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Appeal – VCAT – transport accident – whole person impairment – method of assessment of impairment to the musculosketal system under chapter 3 of the fourth edition of the AMA Guides to Evaluation of Permanent Impairment – when level of impairment to be determined - direction in chapter 3 in conflict with remainder of Guides and relevant legislation – Lake v TAC, Project Blue Sky v Australian Broadcasting Authority – Transport Accident Act 1986 s 46A

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Forrest QC with Mr A Moulds	Richmond & Bennison
For the Respondent	Mr CM Maxwell QC with Mr P Solomon	TAC Law

HER HONOUR:

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against an order dated June 2003 and handed down on 19 June 2003 by the Victorian Civil and Administrative Tribunal (“the Tribunal”), constituted by Ms Megay and Ms Steele, Senior Members, in its General List.

The order of the Tribunal reads:

The determination of the respondent made on 1 March 2002 is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 23% arising out of the transport accident on 7 June 2003.

Leave to appeal was granted on 5 September 2003 by Master Wheeler, limited to the following questions of law:

1.Does the directive (“the Directive”) contained at page 100 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th edition (“the Guides”) that:
“With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment.”

have any force in assessing an impairment of a spine under Chapter 3 of the Guides?
2.Should the impairment of the Appellant’s cervico-thoracic spine under Chapter 3 of the Guides be assessed pre-operatively in accordance with the Directive?

The legislative provision which prescribes the use of the Guides in assessing impairment is section 46A of the Transport Accident Act 1986 (“the Act”), which reads as follows, so far as relevant:

46A.Degree of impairment
(1)The [Transport Accident] Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at¾
(a)If the person is not a minor when the accident occurred¾
(i)18 months after the accident; or
(ii)when the…

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: [2004] VSC 102
Decision Date: 1 April 2004

CaseChat Overview and Summary

The appeal heard by the Court involved Bayliss, the appellant, and the Transport Accident Commission, the respondent. Bayliss sought a review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT) regarding the assessment of whole person impairment resulting from a transport accident. The central dispute centred on the method of assessing impairment to the musculoskeletal system, specifically in accordance with Chapter 3 of the fourth edition of the AMA Guides to Evaluation of Permanent Impairment. The disagreement arose from the timing of when the level of impairment should be determined, given the conflict between the instructions in Chapter 3 and the rest of the Guides as well as the relevant legislation.

The legal issues before the Court encompassed the proper interpretation of Chapter 3 of the AMA Guides, and its interaction with the Transport Accident Act 1986 and other relevant legislation. Bayliss argued that the assessment of impairment should be based on the condition at the time of the assessment, while the Transport Accident Commission contended that the assessment should be based on the condition at the time of the accident. The Court needed to determine which interpretation was consistent with the legislative framework and the purpose of the Guides.

The Court found that the Transport Accident Commission's approach was consistent with the legislative framework and the purpose of the Guides. It held that the assessment of impairment should be based on the condition at the time of the accident, in line with the direction of the rest of the Guides and the relevant legislation. The Court concluded that the Transport Accident Act 1986, s 46A, which required the assessment to be based on the whole person impairment at the time of the accident, was not in conflict with Chapter 3, but rather provided the necessary guidance for its interpretation. The Court also referred to Lake v TAC and Project Blue Sky v Australian Broadcasting Authority to support its reasoning.

The Court dismissed Bayliss's appeal and affirmed the VCAT decision. The Court's decision clarified the correct approach to the assessment of whole person impairment in transport accident cases, providing guidance for future cases and ensuring consistency in the application of the AMA Guides and relevant legislation.

Orders