Bezzina v Phi

[2012] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0079

RICKY BEZZINA

Applicant

v

TRUNG PHI  

and

TRANSPORT ACCIDENT COMMISSION

Respondents

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JUDGES:	HARPER JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2012
DATE OF JUDGMENT:	24 July 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 161
JUDGMENT APPEALED FROM:	Bezzina v Phi & Anor [2011] VCC 423 (Judge Cohen)

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ACCIDENT COMPENSATION − Transport accident − Serious injury application − Application for leave to appeal from order dismissing serious injury application − Consequences of impairment − ‘Very considerable’ test − Pre-existing injury − Application dismissed − Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram with Ms M Pilipasidis	Verduci Lawyers
For the Respondents	Mr P H Solomon SC with Mr P D Herzfeld	Solicitor to the Transport Accident Commission

HARPER JA
BEACH AJA:

Introduction

1. On 4 March 2006, Mr Ricky Bezzina, the applicant, was involved in a transport accident at the intersection of the Western Highway and Robertson Road, Deer Park.  The applicant was turning his motor vehicle right from Robertson Road onto the Western Highway when it was struck by a vehicle driven by Mr Trung Phi, the first respondent.  Mr Phi had run a red light.  One result of the accident was that the applicant’s car was so badly damaged that it was written off.  Another was that the applicant was taken by ambulance to the Western Hospital and admitted overnight.

1. The hospital diagnosed a sprain or strain of the right shoulder.  An X-ray showed a dislocation of the right acromio-clavicular joint in the right shoulder and an indication of disruption of the coracoid clavicular ligament but no fracture of the clavicle.  The applicant also noticed neck pain, although his initial concerns were mainly with his shoulder.

1. By an originating motion filed in the County Court on 12 April 2010, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to bring proceedings at common law against the first respondent.[1] The application was heard by Judge Cohen on 15, 16 and 24 March 2011. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) – namely, ‘serious long-term impairment or loss of a body function’. The body functions relied upon by the applicant were the functions of the right shoulder and the cervical spine.

   [1]We assume that the Transport Accident Commission was joined as a second defendant to that application (and thus became the second respondent in this application) in purported compliance with s 93(5) of the Act which requires a copy of an application under s 93(4)(d) to be served on the Commission and each person against whom the applicant claims to have a cause of action.

1. On the hearing of the application, the applicant relied upon affidavits sworn by himself and his wife, and upon various correspondence, medical reports and other medical material together with…