Berbers v Transport Accident Commission - [2002] VSC 211

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4113 of 2002

JANNEKE BERBERS	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Osborn J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2002
DATE OF JUDGMENT:	5 June 2002
CASE MAY BE CITED AS:	Berbers v TAC
MEDIUM NEUTRAL CITATION:	[2002] VSC 211

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PRACTICE AND PROCEDURE – appeal from Victorian Civil and Administrative Tribunal – assessment of whole person psychiatric impairment – discrepancy between the Tribunal’s finding of facts and conclusion – the Tribunal’s amendment of its reasons is not a mere rectification of a slip but a change to a critical element and is therefore beyond power – substitution of Tribunal’s conclusion is not appropriate because the discrepancy is not necessarily the result of arithmetic error only – an order reinstating the original reasons is inappropriate because it would reinstate reasons which would not fulfill the purpose of s.117 of the Victorian Civil and Administrative Tribunal Act 1998 – the fundamental inconsistency discloses an error of law – the conclusion is not reasonably open to the Tribunal – the Tribunal failed to have regard to the facts as found – reinstatement of the Tribunal’s reasons would not be conducive to a fair and expeditious outcome – matter remitted for rehearing with respect to the issue of psychiatric impairment

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J P Brett	Efron & Associates
For the Respondent	Mr P H Solomon	TAC Law Pty Ltd

HIS HONOUR:

This is the hearing of an appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”). Such an appeal is restricted to a question of law. Somewhat unusually there is no dispute between the parties before me that an error of law has occurred, but there is fundamental disagreement as to what order the Court should make as a consequence of that error.

The matter arises in the following way. On 20 May 2001 the appellant, Mrs Berbers, applied for review of the determination by the respondent Transport Accident Commission pursuant to s.47(7B) of the Transport Accident Act 1986 that the appellant’s degree of impairment resulting from a transport accident on 5 May 1995 was less than 30%.

The application for review came on for hearing before a Deputy President of the Victorian Civil and Administrative Tribunal (“the Tribunal”) and was heard over a number of days in November 2001. On 19 December 2001 the Tribunal handed down its decision and affirmed the determination under review.

The decision of the Tribunal is detailed and logical in its structure save in one respect. It sets out the relevant background matters and then coherently analyses the evidence with respect to the appellant’s degree of impairment; identifying the experts who gave evidence, describing relevant aspects of the appellant’s own evidence, then setting out impairment assessments under a series of heads. The heads of assessment are based on chapters in the Second Edition of Guides to 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: [2002] VSC 211
Decision Date: 5 June 2002

CaseChat Overview and Summary

The appeal heard by the court involved Berbers against the Transport Accident Commission. The crux of the dispute revolved around the assessment of whole person psychiatric impairment in the context of a claim for compensation. The Victorian Civil and Administrative Tribunal had made an initial determination, but Berbers sought review of this decision on the basis of perceived inconsistencies between the tribunal's findings of fact and its ultimate conclusions. The court was tasked with examining whether the tribunal had properly exercised its statutory powers and whether the appeal should be upheld.

The primary legal issues before the court included whether the tribunal's amendment of its reasons amounted to an impermissible alteration of its findings and whether the tribunal had failed to properly consider the facts as found. Specifically, the court needed to determine if the tribunal had committed an error of law by making a conclusion that was not reasonably open to it given the facts as established. Additionally, the court had to consider the appropriate remedy, particularly whether reinstating the original reasons was a viable option or if the matter should be remitted for a new hearing.

The court held that the tribunal's amendment of its reasons constituted more than a mere rectification of a slip; it represented a substantive change that altered a critical element of the decision. Such a change exceeded the tribunal's power under section 117 of the Victorian Civil and Administrative Tribunal Act 1998. The court also found that substituting the tribunal's conclusion was not appropriate because the discrepancy was not solely due to an arithmetic error. Reinstating the original reasons was deemed inappropriate as it would reinstate reasons that did not align with the statutory purpose of ensuring a fair and expeditious outcome. The fundamental inconsistency identified by the court amounted to an error of law, and the tribunal's conclusion was not reasonably open given the facts as found. Consequently, the matter was remitted for rehearing with respect to the issue of psychiatric impairment.

Orders