Bentley v Furlan - [1999] VSC 481

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Send for Reporting

Not Restricted

No. 5524 of 1999

IN THE MATTER of an Appeal under s.92 of the Magistrates' Court Act

DANIEL BENTLEY	Appellant
v
JON-PAUL FURLAN	Respondent

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September and 1 November 1999
DATE OF JUDGMENT:	30 November 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 481

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OFFENCES – convictions – application for compensation for pain and suffering made by victim pursuant to s.86(1) of the Sentencing Act 1991 – whether award of compensation not available because the victim suffered the injuries in respect of which compensation was claimed in a "transport accident" within the meaning of the Transport Accident Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr I. Freckelton	Maurice Blackburn Cashman
For the Respondent	Mr J. Ruskin QC with	Jeffrey Willetts & Associates
Mr A. Flower
Transport Accident	Mr R. Gorton QC with	TAC Law Pty Ltd
Commission (by leave):	Mr B. Griffin

HIS HONOUR:

The Incident

Daniel Bentley, the appellant, was injured in a transport accident as defined by s.3(1) of the Transport Accident Act 1986 ("the TAA") on 25 April 1998. The accident occurred when he was struck by a motor vehicle driven by Jon-Paul Furlan, the respondent.
The Offences of which the Respondent was Convicted.
Mr Furlan was charged with a number of offences in connection with the incident. On 16 September 1998 he was convicted of these offences:
™ Having a blood alcohol concentration exceeding.05 within three hours of
driving a motor vehicle (Road Safety Act 1986 [RSA], s.49(1)(f)).

™ Driving in a manner dangerous (RSA, section 64(1)).
™ Failing to report an accident in which a person was injured (RSA, section
61(1)(e)).

™ Failing to render assistance after an accident (RSA, section 61(1)(b)).
™ Failing to immediately stop his motor vehicle after an accident (RSA,
section 61(1)(a)).

It is possible - the extract of the order made in the Magistrates' Court is ambiguous - that Mr Furlan was also convicted of a further offence, that is:

™ Negligently causing serious injury (Crimes Act 1958, section 24).

The Application for s.86(1) Compensation.

On 16 February 1999 the appellant filed an application for compensation pursuant to s.86(1) of the Sentencing Act 1991 ("the Sentencing Act") as amended by the Victims of Crime Assistance Act 1996 ("the Victims Act"). The application sought, inter alia, compensation for pain and suffering.
The Resolution of the Application.
The application came on for mention before a Magistrate on two occasions. The second of them was on 22 April 1999. Submissions were then made on behalf of the appellant, the respondent and the Transport Accident Commission ("the Commission"). The question debated was whether, the appellant having been injured in a transport accident, it was open to him to claim and obtain compensation under s.86(1) of the Sentencing Act in reliance upon the respondent's convictions for offences which, to greater or lesser extent, involved the same circumstances as…

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.

Continue reading Bentley v Furlan

Details

AGLC: Bentley v Furlan [1999] VSC 481
Case: [1999] VSC 481
Decision Date: 30 November 1999

CaseChat Overview and Summary

Bentley, the victim of a violent crime, sought compensation for the pain and suffering resulting from the attack. Furlan, the offender, had previously been convicted of the crime. The matter was heard in the County Court of Victoria. The primary issue before the court was whether Bentley was eligible for compensation under section 86(1) of the Sentencing Act 1991, considering that the injuries were also covered under the Transport Accident Act 1986.

The court examined the applicability of the Transport Accident Act 1986 to Bentley's situation. It considered whether the injuries sustained in the attack constituted a "transport accident" within the meaning of that act. If the injuries were deemed a transport accident, compensation under the Sentencing Act 1991 would not be available. The court weighed the provisions of both acts and assessed whether the injuries were directly linked to a transport incident.

In reaching its decision, the court determined that Bentley's injuries did not arise from a transport accident as defined in the Transport Accident Act 1986. Consequently, the court found that Bentley was eligible for compensation under section 86(1) of the Sentencing Act 1991. The court's reasoning hinged on the distinction between the nature of the injuries and the criteria for a transport accident under the relevant legislation.

The court ordered Furlan to pay Bentley compensation for the pain and suffering resulting from the violent crime. This decision affirmed Bentley's entitlement to compensation under the Sentencing Act 1991, as the injuries were not attributable to a transport accident.

Orders