Davies v Transport Accident Commission - [2001] VSC 142

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
Not Restricted

No. 5815 of 1999

BARRY PERCIVAL DAVIES	Appellant
V
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2001
DATE OF JUDGMENT:	11 May 2001
CASE MAY BE CITED AS:	Davies v TAC
MEDIA NEUTRAL CITATION:	[2001] VSC 142

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A PERSON “INJURED AS A RESULT OF A TRANSPORT ACCIDENT” under sections 35(1) and 3 of the Transport Accident Act 1986 - determining the degree of impairment and assessing an impairment in respect of injuries caused by a transport accident – what is the effect of a pre-existing condition unrelated to the transport accident on assessing impairment – compensation under the Act – determining the impairment benefit.
AN APPEAL against a decision made by the Victorian Civil and Administrative Tribunal which had reviewed a decision made by the respondent, the Transport Accident Commission.

Transport Accident Act 1986 – sections 3, 35(1), 46A, 47, 48, 53
Transport Accident (Impairment) Regulations 1988 – regulation 6(1)
Transport Accident (Amendment) Act 1998
Victorian Civil and Administrative Tribunal Act 1998 – s 148

Lake v Transport Accident Commission [1998] 1 VR 616
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65
Petkovski v Galletti [1994] 1 VR 436.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr MJ Croyle	Mitchell, McKenzie & Co
For the Respondent	Mr AG Uren QC with Mr Irving Miller	TAC Law Pty Ltd

HER HONOUR:

Introduction

This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), in its General List, on 24 May 1999 on an application for review of a decision of the respondent (“the Commission”) made on 24 September 1997. The Tribunal was constituted by Deputy President Davis. Leave to appeal was granted by Master Wheeler on 17 December 1999 and extended by Mr Justice Eames on 18 September 2000 (Davies v Transport Accident Commission [2000] VSC 379).

The decision of the Tribunal was:

That the decision of the Transport Accident Commission be set aside and there be substituted therefor a determination that the Applicant has suffered a whole person impairment of 46% resulting from the transport accident of 6 November 1993.

The Commission had determined the whole person impairment of the appellant as 39%.

On 17 December 1999 Master Wheeler ordered that the appellant have leave to appeal only on the following questions of law:

1.Did the Tribunal misdirect itself as to the meaning and application of the words ”as a result of” in the relevant sections of the Transport Accident Act 1986 (“the Act”), particularly sections 47 and 53 and the regulations to the Act?
2.Did the Tribunal misapply or misinterpret the provisions of the “Guide”, particularly chapter 8 thereof, when reaching its conclusions stated in paragraphs 45 and 46 of its decision?
3.Having [reached]…

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: [2001] VSC 142
Decision Date: 11 May 2001

CaseChat Overview and Summary

The case of Davies v Transport Accident Commission is an appeal against a decision by the Victorian Civil and Administrative Tribunal (VCAT), which had reviewed a decision made by the Transport Accident Commission. The primary dispute revolves around the interpretation and application of sections 35(1) and 3 of the Transport Accident Act 1986, focusing on how the degree of impairment should be assessed when a person suffers injuries from a transport accident that are compounded by a pre-existing condition unrelated to the accident. The issue is critical for determining the compensation a claimant should receive under the Act, particularly the impairment benefit. The appellant argues that the Tribunal erred in its assessment of the degree of impairment by failing to adequately consider the impact of the pre-existing condition on the overall impairment assessment.

The legal issues the court was required to decide included whether the pre-existing condition should be factored into the degree of impairment assessment and, if so, to what extent. It also needed to determine the correct approach to assessing the impairment benefit under the Act. The court had to consider previous judicial decisions and statutory provisions, particularly the Transport Accident (Impairment) Regulations 1988 and the Transport Accident (Amendment) Act 1998. The court examined the precedent set in Lake v Transport Accident Commission and Petkovski v Galletti, which provided guidance on how to approach impairment assessments in the context of pre-existing conditions.

The court found that the Tribunal's approach to the impairment assessment was flawed as it did not appropriately consider the impact of the pre-existing condition on the overall degree of impairment. The court held that while a pre-existing condition must be factored into the assessment, it should not be given undue weight if it is unrelated to the transport accident. The court emphasised that the primary focus should be on the impairments caused by the accident itself, while also considering the overall impact on the claimant's health and functioning. The appeal was allowed, and the matter was remitted to the Tribunal for re-determination according to the correct legal principles. The final orders included a directive for the Tribunal to reassess the degree of impairment, ensuring that the pre-existing condition was appropriately considered but not overemphasised.

Orders