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Byrne v Transport Accident Commission

Byrne v Transport Accident Commission

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5722 of 2006
No. 5760 of 2006

JANE BYRNE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2007
DATE OF JUDGMENT:	31 March 2008
CASE MAY BE CITED AS:	Byrne v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2008] VSC 92

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ACCIDENT COMPENSATION – Transport accident – Damages – Serious injury – Common law claim – Compensation claim statute barred – Whether common law claim barred – Whether particular decision of Transport Accident Commission in relation to threshold test reviewable by Victorian Civil and Administrative Tribunal – Transport Accident Act 1986 ss 35(1), 46A(1) and (1A), 47(7) and (7B), 63(1), 67, 68, 70, 71(1) and (1A), 77 – Transport Accident (Amendment) Act 2000 No 84/2000.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC Mr A D B Ingram	Clark & Toop
For the Defendant	Mr M Dreyfus QC Ms V Minz	Transport Accident Commission

HIS HONOUR:

There are two related proceedings before me. Jane Byrne is the appellant in one and the plaintiff in the other. The Transport Accident Commission (“TAC”) is the opposite party in both. I will call Ms Byrne the plaintiff. In late February 1999 she was five months’ pregnant. She claims that on 27 February 1999 she was travelling as a passenger in a car being driven by her husband in suburban Melbourne and that she was wearing a seat belt. She claims that her husband braked heavily to avoid a taxi which allegedly stopped suddenly ahead of them and that she was thrown against the seat belt. She claims that a few days later, as a result, she lost the foetus she was carrying.

On 29 May 2003 the plaintiff submitted a claim for compensation under the Transport Accident Act 1986 (“the Act”) to the TAC in relation to the alleged accident, specifying her injury as loss of a foetus. On 5 June 2003 the TAC rejected her claim as being out of time. The plaintiff now accepts that the claim was out of time.

On 28 October 2004, in response to a letter from the plaintiff’s solicitors foreshadowing a common law claim and referring in that regard to the absence of any assessment by the TAC of the plaintiff’s “degree of impairment” within the meaning of the Act, the TAC wrote to the solicitors asserting that an impairment determination could not be made in the absence of an accepted claim for compensation.

On 13 December 2004 the plaintiff issued a writ in relation to the alleged accident claiming common law damages for the loss of the foetus. The nominated defendant, effectively the TAC, immediately objected to the maintainability of the action on the ground that the plaintiff had not passed through any of the “gateways” to common law proceedings specified in s 93 of the Act. It appears to be common ground that no such “gateway”…

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: [2008] VSC 92
Decision Date: 31 March 2008

CaseChat Overview and Summary

Byrne commenced proceedings against the Transport Accident Commission, seeking compensation for injuries sustained in a motor vehicle accident. The dispute centred on the assessment of damages and the applicability of statutory provisions to bar a common law claim. The matter was heard in the Supreme Court of Victoria.

The court had to decide whether Byrne's common law claim was barred by a particular decision of the Transport Accident Commission in relation to a threshold test. Additionally, the court needed to determine whether this decision was reviewable by the Victorian Civil and Administrative Tribunal under the Transport Accident Act 1986.

In determining these issues, the court examined the relevant statutory provisions, including sections 35(1), 46A(1) and (1A), 47(7) and (7B), 63(1), 67, 68, 70, 71(1) and (1A), and 77 of the Transport Accident Act 1986, as well as the amendments introduced by the Transport Accident (Amendment) Act 2000. The court found that the decision of the Transport Accident Commission regarding the threshold test was not reviewable by the Victorian Civil and Administrative Tribunal. Consequently, the court held that Byrne's common law claim was not barred by the Commission's decision.

The court ordered that Byrne's common law claim was not barred and that the decision of the Transport Accident Commission regarding the threshold test was not reviewable by the Victorian Civil and Administrative Tribunal. The matter was to proceed to trial to determine the appropriate compensation for Byrne's injuries.

Orders