Cowden v Transport Accident Commission - [2003] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.3761 of 2002

JENNA COWDEN
	Appellant
v.
TRANSPORT ACCIDENT COMMISSION and ANOR	Respondents

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JUDGES:	PHILLIPS, CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2003
DATE OF JUDGMENT:	10 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 198

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Accident Compensation – Transport accident – Serious injury – Inability to work as a ski instructor – No serious long term impairment – Quaere whether order refusing leave is interlocutory or final – Transport Accident Act 1986, s.93(4)(d).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. D.G. Brookes with Mr. D. Purcell	Nevin Lenne & Gross
For the Respondents	Mr. J. Ruskin Q.C. with Mr. W.R. Middleton	TAC Law Pty. Ltd.

PHILLIPS, J.A.:

I agree with Buchanan, J.A. If leave to appeal is required, I would grant leave and, for the reasons his Honour has given, dismiss the appeal.

On this occasion, as is usual in such cases, the parties did not advert to the possibility that leave to appeal was needed and, although Callaway, J.A. expresses the view that the question whether leave is needed should be decided when a suitable case arises, I am not so clear that that will work any saving of time or expense to the parties. The materials on which leave will be sought (if leave is needed) and the materials on which the appeal proceeds (if leave is given) will be much the same; the decision below is final in effect, which is relevant to the grant of leave; and often, I suspect, the task of deciding leave will fall little short of that of deciding the appeal. In those circumstances, to require a separate application to be made for leave to appeal will ordinarily add to the expense involved, rather than reduce it; it will require the attention of another court; and in the end may result only in the application for leave to appeal being put over to the court entertaining the appeal. The present practice, as I apprehend it, of granting leave if leave be needed is an expedient which, subject to argument, seems to me apt.

None the less, I am conscious of the fact that if leave to appeal is necessary it is the product of the legislation and it is, of course, incumbent upon us to do as Parliament requires. If, in a suitable case, it were to be decided that leave to appeal is needed when an application for leave to proceed on the ground of “serious injury” is dismissed in the County Court, it may nevertheless be desirable for this Court to put in place some system whereby the question of leave is raised for separate determination only in a very clear case, leaving it appropriate in other cases for the application for leave to appeal to be brought on for hearing with the appeal if leave be given (as indeed is the common practice in the case of appeals against conviction). In this instance I…

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: [2003] VSCA 198
Decision Date: 10 December 2003

CaseChat Overview and Summary

The Court heard an appeal brought by the Transport Accident Commission against a decision of a delegate of the Commissioner for Accident Rehabilitation and Compensation Insurance, which granted compensation to the appellant for his serious injury. The appellant, Cowden, sustained injuries in a transport accident, but was unable to work as a ski instructor due to his injuries. The primary dispute was whether Cowden's inability to work as a ski instructor constituted a serious long term impairment for the purposes of the Transport Accident Act 1986. The Commission argued that the injury did not amount to a serious long term impairment, and therefore, Cowden was not entitled to compensation.

The key legal issues before the Court were whether the delegate's decision was correct, and whether Cowden's inability to work as a ski instructor constituted a serious long term impairment. The Court had to consider the definition of a serious injury under the Act, as well as the relevant case law. The Court also had to determine whether the delegate's decision was interlocutory or final, as this would impact the appeal process.

The Court found that the delegate's decision was incorrect, as Cowden's inability to work as a ski instructor did not amount to a serious long term impairment. The Court held that the delegate had failed to consider all relevant factors in making the decision, and had placed undue reliance on the medical evidence. The Court also found that the delegate's decision was final, as it determined Cowden's entitlement to compensation. As a result, the appeal was dismissed, and Cowden was entitled to compensation for his serious injury.

Orders