Connelly v Transport Accident Commission - [2024] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0073

XAVIER CONNELLY	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, NIALL JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 20
JUDGMENT APPEALED FROM:	[2023] VCC 836 (Judge Clayton)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Knee injury – Multiple significant consequences – Consequences likely to be suffered for decades – Likelihood and/or risk of deterioration necessitating further surgery – Whether judge erred in failing to be satisfied that consequences were collectively very considerable – Appeal allowed – Application for leave to commence common law proceeding granted.

Transport Accident Act 1986, s 93.

Humphries v Poljak [1992] 2 VR 129; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, applied. Mobilio v Balliotis [1998] 3 VR 833 not followed.

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Counsel
Applicant:		Ms FAL Ryan SC with Ms M Williams
Respondent:		Mr J Ruskin KC with Ms M Norton
Solicitors
Applicant:	Slater & Gordon Lawyers Ltd
Respondent:	Solicitor for Transport Accident Commission

BEACH JA
NIALL JA
J FORREST AJA:

On 15 November 2012, after swerving to avoid a motor vehicle, the applicant fell off his pushbike and suffered an injury to his right knee (‘the accident’). MRI investigations showed that the applicant had torn the graft from a previous repair of his right anterior cruciate ligament (‘ACL’) injury, performed in 2004. On 10 January 2013, the applicant underwent surgery to his right knee to repair the ACL injury suffered as a result of the accident.
By an originating motion filed in the County Court on 16 July 2021, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the TA Act’), to commence a proceeding at common law claiming damages in respect of the injuries he sustained as a result of the accident. In the originating motion, the applicant also sought an extension of time, pursuant to s 23A of the Limitation of Actions Act 1958 (‘the LOA Act’), within which to commence his proposed proceeding.
The applications were heard in the County Court by her Honour Judge Clayton on 15 May 2023. The applicant’s evidence-in-chief was given on affidavit, before he was cross-examined and then re-examined. He was the only witness to give evidence orally. The medical evidence was documentary, consisting of medical reports and medical records.
On 1 June 2023, pursuant to reasons published that day,[1] the judge made an order dismissing the proceeding. In essence, the judge was not satisfied that the consequences of the right knee injury suffered in the accident could be described as ‘very considerable’ as required by Humphries v Poljak.[2] Having reached that conclusion,[3] the judge determined that the provisions of s 23A of the LOA Act were not enlivened, which she said precluded any consideration of whether 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: [2024] VSCA 20
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the case of Connelly v Transport Accident Commission, the High Court of Australia was asked to determine whether the lower court had erred in its assessment of whether the consequences of the appellant’s knee injury were collectively very considerable. The case originated from a decision by the County Court of Victoria, which had denied the appellant leave to commence a common law proceeding against the Transport Accident Commission. The appellant, Connelly, sustained a knee injury in a transport accident, which led to multiple significant consequences that are likely to be suffered for decades, including the likelihood and/or risk of deterioration necessitating further surgery. The appellant argued that the lower court had failed to be satisfied that the consequences of his injury were collectively very considerable, thereby denying him the right to commence a common law proceeding.

The legal issue at the heart of this appeal was whether the lower court had applied the correct legal standard in determining whether the appellant’s injury met the threshold of being a “serious injury” under the Transport Accident Act 1986. Specifically, the court needed to decide whether the judge had erred in failing to be satisfied that the consequences of the injury were collectively very considerable, which is a prerequisite for granting leave to commence a common law proceeding. The appellant contended that the lower court had misapplied the legal standard by not properly considering the totality of the consequences of his injury, while the respondent argued that the lower court’s decision was correct and should be upheld.

The High Court found that the lower court had indeed erred in its application of the legal standard. The Court held that the determination of whether an injury is a serious injury, and therefore meets the “very considerable” test, is an evaluative exercise but one that admits of only one legally permissible answer. The Court emphasised that unlike discretionary decisions, this evaluative exercise is not subject to the standard of review outlined in House v The King but rather to the correctness standard. The Court noted that the lower court had failed to adequately consider the totality of the consequences of the appellant’s injury, which included the significant and long-term impact on his life, as well as the likelihood of future medical issues. Consequently, the High Court allowed the appeal and granted the appellant leave to commence a common law proceeding against the Transport Accident Commission.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In coming to that conclusion, the High Court said that, while the exercise of power to permanently stay a proceeding on the ground that it is an abuse of process is an evaluative one, it is not a discretionary decision. Accordingly, the applicable standard of appellate review is not that specified in House v The King;[34] it is the ‘correctness standard’ as explained in Warren v Coombes. As the plurality put it:As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or ‘“so unfairly and unjustifiably oppressive” as to constitute an abuse of process’ is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the ‘correctness standard’ as explained in Warren v Coombes.…The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.[35][34](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).[35]GLJ (2023) 97 ALJR 857, 865–6 [15]–[16] (Kiefel CJ, Gageler and Jagot JJ) (emphasis added). See also 881 [95] (Steward J) and 892 [161] (Gleeson J). There can be no doubt that, like the permanent stay decision the subject of GLJ, a decision of whether an injury satisfies the ‘very considerable’ test is an evaluative one. That said, it is a decision that admits of only two answers: either the injury is a serious injury as defined in the TA Act, or it is not. Unlike cases such as Norbis v Norbis,[36] referred to by the plurality in GLJ,[37] or cases involving the assessment of damages for non-economic loss in a personal injury proceeding, there is not a range of legitimate and reasonable (or correct) answers that might be given to the question of whether a particular injury has satisfied the very considerable test. To use the words of the plurality in GLJ again, there is ‘but one legally permissible answer, even if that answer involves a value judgment’.[38][36](1986) 161 CLR 513 (Mason, Wilson, Brennan, Deane and Dawson JJ).[37](2023) 97 ALJR 857, 866 [16] (Kiefel CJ, Gageler and Jagot JJ).[38]Ibid.

Ratio Decidendi

Legal Principle Established

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