ACCIDENT COMPENSATION – Transport accident – Leave to bring common law proceedings – Applicant involved in four separate transport accidents – Whether latest aggravation injury amounted to ‘serious injury’ – Whether trial judge ignored certain evidence and/or gave insufficient reasons in refusing leave – Whether trial judge conflated causation and extent of impairment – Transport Accident Act 1986, sub-ss 93(1), (3), (4), (6), (17) – Humphries v Poljak [1993] 2 VR 129, Petkovski v Galletti [1994] 1 VR 436, discussed – Application refused.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr P A Jewell SC and Mr D Churilov
Nowicki Carbone
For the First and Second Respondents
Mr J Ruskin QC and Mr S A O’Meara
Solicitors for Transport Accident Commission
MANDIE JA:
I agree with Tate JA.
TATE JA:
On 9 March 2003, Valda De Agostino was a passenger in a car driven by her husband which collided with another car travelling in the opposite direction. In this accident (‘the 2003 accident’) she aggravated pre-existing injuries to her cervical spine. The 2003 accident was her fourth transport accident, the previous three having occurred on 21 September 1988, 10 August 1992 and 28 November 1993.
Mrs De Agostino sought leave in the County Court to bring proceedings for common law damages on the ground that the aggravation caused by the 2003 accident to the pre-existing injuries to her cervical spine was itself a ‘serious injury’ within the meaning of s 93 of the Transport Accident Act 1986 (‘the Act’). The trial judge refused leave[1] and Mrs De Agostino now seeks leave to appeal that decision to this Court.
The question raised by this application for leave is whether the increased pain and suffering consequences of the 2003 accident are sufficient to meet the threshold of a ‘serious injury’. The case presented by Mrs De Agostino relied entirely upon a comparison between the degree of impairment she suffered before the 2003 accident (as a result of the three previous transport accidents, or otherwise) and the degree of impairment she suffered after the 2003 accident. Could it be concluded that the additional degree of impairment to the cervical spine suffered as a result of the 2003 accident had pain and suffering consequences that were at least ‘very considerable’ and more than ‘significant’ or ‘marked’?
Legislative framework
By reason of s 93(1) of the Act, Mrs De Agostino cannot recover any damages in respect of injury as a result of a transport accident except in accordance with the section. Section 93(4)(d) provides…
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
AGLC
De Agostino v Leatch & Anor [2011] VSCA 249
Case
[2011] VSCA 249
Decision Date
CaseChat Overview and Summary
The applicants, De Agostino and Leatch, sought leave to bring common law proceedings against respondents arising out of a series of transport accidents. The applicants had been involved in four separate transport accidents, the last of which resulted in injuries that were said to have aggravated the effects of earlier accidents. The application for leave was brought under section 93 of the Transport Accident Act 1986, which allows for proceedings in certain circumstances where a person has suffered a serious injury in a transport accident. The first respondent, in turn, cross-applied to dismiss the claim. The central legal issue before the court was whether the latest aggravation of injury amounted to a 'serious injury' under the Transport Accident Act 1986. The court had to determine if the trial judge had erred in either ignoring certain evidence or providing insufficient reasons for the refusal of leave. Additionally, the court had to assess whether the trial judge had conflated the issues of causation and the extent of impairment.
The court examined the evidence presented by the applicants and considered the trial judge's reasons for refusing leave. The applicants argued that the trial judge had ignored evidence of the aggravation of their injuries and had failed to provide adequate reasons for the decision. The court found that the trial judge had carefully considered the evidence and had provided sufficient reasons for the decision. The court also found that the trial judge had not conflated causation and the extent of impairment, as the applicants had suggested. The court concluded that the trial judge's findings were supported by the evidence and that the applicants had not demonstrated that the trial judge had erred in refusing leave.
Having considered the arguments and the evidence, the court dismissed the application for leave to bring common law proceedings. The court held that the trial judge had not erred in refusing leave and that the applicants had not demonstrated that the latest aggravation of injuries amounted to a 'serious injury' under the Transport Accident Act 1986. The cross-application to dismiss the claim was therefore allowed.