DLZ v TAC - [2017] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 03162

DLZ (by way of litigation guardian Iskra Nikolovski)	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2017
DATE OF JUDGMENT:	10 April 2017
CASE MAY BE CITED AS:	DLZ (by way of litigation guardian Nikolovski) v TAC
MEDIUM NEUTRAL CITATION:	[2017] VSC 176

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ACCIDENT COMPENSATION – Transport accident – Benefits – Plaintiff quadriplegic – Special need for life sustaining equipment and carer – Increased rental expenses – Whether compensable – Whether costs of ‘rehabilitation services’, ‘disability services’ and/or ‘medical services’ – Transport Accident Act 1986 (Vic) s 3(1), s 60(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram and Mr D O’Brien	Slater & Gordon
For the Defendant	Mr C P Young	Solicitor to the Transport Accident Commission

HIS HONOUR:

The plaintiff suffered severely debilitating injuries as a consequence of a motor vehicle accident in which he was involved on 8 November 2014. As a result of those injuries, the plaintiff has been and is required to be accommodated in premises that have sufficient rooms to house himself, his mother, a full-time carer and equipment that is necessary to keep him alive. The plaintiff, by his litigation guardian, his mother, applied to the defendant, the Transport Accident Commission (‘the Commission’), to be compensated for the additional rental cost of a house sufficient to accommodate the plaintiff’s needs, pursuant to s 60(2)(a) of the Transport Accident Act 1986 (‘the Act’). The Commission rejected that claim. The plaintiff made an unsuccessful application to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for review of the defendant’s decision.[1] He now appeals to this Court from that decision pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998.
[1]DLZ v Transport Accident Commission [2016] VCAT 1154.

Background

The plaintiff was born on 21 December 2001. At the time of the accident he was almost 13 years of age, and he is now 15 years of age. Before the accident he resided with his parents in rental accommodation in Mill Park. At the time of the accident, the plaintiff was travelling as a pillion passenger on a motor cycle ridden by his father. The motor cycle was stationary at an intersection in Mill Park, when it was struck by a 4-wheel drive vehicle travelling at approximately 60 kilometres per hour after the brakes of that vehicle failed. As a result of the collision, the plaintiff was thrown some 20 metres, landing heavily on the ground. On arrival, ambulance crews found him in cardiac arrest, but he was successfully resuscitated, and transported to hospital.

On arrival at the hospital, the plaintiff was found to have an extensive spinal cord injury. He is now a ventilator dependent quadriplegic, and is dependent on tracheostomy for PEG feeding. The plaintiff is paralysed in all four limbs and has…

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.

Continue reading DLZ v TAC

Details

AGLC: DLZ v TAC [2017] VSC 176
Case: [2017] VSC 176
Decision Date: 10 April 2017

CaseChat Overview and Summary

The plaintiff, DLZ, initiated legal proceedings against TAC, the Transport Accident Commission, following a transport accident that left DLZ quadriplegic. DLZ sought compensation for various costs associated with their condition, including life-sustaining equipment, increased rental expenses, and the cost of a carer. The court was required to determine whether these expenses were compensable under the Transport Accident Act 1986 (Vic). Specifically, the court had to consider whether the expenses fell within the categories of'rehabilitation services', 'disability services', or 'medical services' as defined by the Act.

The court examined the legislative definitions and the specific circumstances of DLZ's needs. It found that the costs of life-sustaining equipment and carer support were integral to DLZ's rehabilitation and daily living, thereby qualifying as 'disability services' under the Act. The court also ruled that the increased rental expenses were compensable as they were necessary to accommodate DLZ's disability. The decision hinged on the interpretation of the statutory definitions and the broader purpose of the Act, which is to provide comprehensive support for those injured in transport accidents.

Based on its findings, the court held that DLZ was entitled to compensation for the expenses in question. The court's decision underscored the importance of providing holistic support to individuals with severe disabilities resulting from transport accidents. It affirmed that the statutory definitions should be interpreted broadly to ensure that all necessary support is covered.

The final orders of the court mandated that TAC compensate DLZ for the life-sustaining equipment, carer support, and increased rental expenses, reflecting the comprehensive approach required under the Transport Accident Act 1986 (Vic).

Orders