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Blake Hooley v Transport Accident Commission

Blake Hooley v Transport Accident Commission

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Case Copied 19 November 2019 28 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0031

BLAKE HOOLEY	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	TATE, BEACH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2019
DATE OF JUDGMENT:	19 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 263
JUDGMENT APPEALED FROM:	[2019] VCC 150 (Judge Millane)

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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Upper limb injury – Permanent impairment – Whether consequences serious – Primary judge erred in application of Humphries v Poljak [1992] VR 129 – Whether reasons for judgment adequate – Consequence of injury at least ‘very considerable’ – Appeal allowed – Leave to commence common law proceeding granted – Transport Accident 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram QC with Mr J Valiotis	Arnold, Thomas & Becker
For the Respondent	Mr S A O’Meara QC with Ms R L Kaye	Solicitor to Transport Accident Commission

TATE JA
BEACH JA
OSBORN JA:

On 5 October 2013, the applicant was a passenger in a motor vehicle which collided with another vehicle at an intersection. As a result of the collision, the applicant suffered an injury involving the rupture of his left biceps tendon which subsequently required surgery.

By an originating motion filed in the County Court on 25 July 2018, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for the injury he sustained as a result of the collision.

The application was heard on 1 February 2019. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’) and paragraph (b) of the definition (‘permanent serious disfigurement’). The body function relied upon by the applicant was the function of his left upper limb, and the permanent disfigurement was described as the ‘Popeye’ appearance of the applicant’s left bicep muscle and surgical scarring to the applicant’s left upper arm.

At the hearing of the application, the respondent did not dispute that the applicant suffered injury involving the rupture of the biceps tendon of his left upper arm resulting in a long-term impairment of his left upper limb and permanent disfigurement involving the ‘Popeye’ appearance of the muscle and scarring. The issue was whether either the impairment or the disfigurement could fairly be described as ‘serious’ within the meaning of s 93 of the Act.

On 21 February 2019, the judge dismissed the applicant’s application.[1] The applicant now seeks leave to appeal against the order dismissing his application. The application for leave to appeal is, however, limited to the judge’s dismissal of the application so far as it involved paragraph (a) of the definition of ‘serious injury’. The applicant’s proposed grounds of appeal are as follows:

1.The judge erred in the application of Humphries v Poljak [1992] 2…

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: [2019] VSCA 263
Decision Date: 19 November 2019

CaseChat Overview and Summary

The appeal before the court was between Blake Hooley, the appellant, and the Transport Accident Commission, the respondent. The dispute revolved around a serious injury application related to a transport accident. The case was heard in the Court of Appeal. The appellant contended that the primary judge had erred in the application of the principles established in Humphries v Poljak, leading to an inadequate assessment of the consequences of the injury. Furthermore, the appellant argued that the consequences of his injury were at least 'very considerable', warranting a different outcome.

The legal issues before the court centred on the interpretation and application of the statutory criteria for determining whether an injury is serious, as outlined in the Transport Accident Act 1986. Specifically, the court had to assess whether the primary judge's reasons for judgment were adequate and whether the consequences of the appellant's upper limb injury met the threshold of being 'very considerable'. The court also had to consider whether the primary judge had erred in the application of the legal principles from Humphries v Poljak.

In delivering the judgment, the court found that the primary judge had indeed erred in the application of Humphries v Poljak. The court held that the reasons provided by the primary judge were inadequate in addressing the full extent of the consequences of the appellant's injury. The court concluded that the consequences of the injury were at least'very considerable', and as such, the appeal was allowed. The court further granted leave to the appellant to commence a common law proceeding against the respondent.

The final orders of the court were that the appeal was allowed, the reasons provided by the primary judge were deemed inadequate, and leave was granted to the appellant to commence a common law proceeding against the respondent. The decision underscores the importance of correctly applying legal principles in assessing the consequences of a serious injury in the context of transport accident compensation.

Orders