Demmler v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0070

SAMANTHA DEMMLER	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KAYE JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2018
DATE OF JUDGMENT:	9 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 284
JUDGMENT APPEALED FROM:	[2018] VCC 626

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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Injury to the spine – Consequences relating to pain and suffering and pecuniary disadvantage – Whether consequences serious – Consequences of injury to applicant at least very considerable – Primary judge erred in refusing application – Appeal allowed – Leave granted to applicant to commence common law proceeding – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram with Mr J Valiotis	Slater & Gordon Ltd
For the Respondent	Mr J Ruskin QC with Ms K M Manning	Solicitor for the Transport Accident Commission

BEACH JA
KAYE JA
MACAULAY AJA:

1. On 19 July 2014, the applicant was a front-seat passenger in a motor vehicle that ran off the road and collided with a tree.  Following the collision, the applicant was taken to the Alfred Hospital.

1. By an originating motion filed in the County Court on 6 June 2017, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for the injuries she alleged she sustained as a result of the collision. The application was heard on 26 February 2018. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon by the applicant was the function of the spine. The applicant’s credit was not put in issue by the respondent.

1. On 10 May 2018, the judge dismissed the applicant’s application.[1]  The applicant now seeks leave to appeal and (if leave is granted) to appeal the judge’s order refusing her leave to commence a common law proceeding.  The applicant’s proposed grounds of appeal are as follows:

   [1]Demmler v Transport Accident Commission [2018] VCC 626 (‘Reasons’).

1.The judge at [58] mis-stated, and in consequence failed to properly assess in his reasons, the nature of the cervical spine injury assessed by orthopaedic surgeon Mr Kierce.

2.The judge failed to provide adequate reasons for preferring the diagnosis and opinion of GP Dr O’Gorman at [55], [59], [61], [70], [72] and [78] in particular having regard to:

(a)lack of contemporaneous treatment or assessment of the applicant by Dr O’Gorman;

(b)contemporaneous treatment of the applicant by clinical physiotherapist Deborah Low, acupuncturist and massage therapist Nadia Gazzi, and physiotherapist Treena Lord and the evidence of those practitioners;

(c)the evidence of the applicant as to increasing cervical and lumbar spine symptoms during 2017 and 2018 necessitating increasing treatment and use of pain relieving medication over that…