Dunin v Harrison - [2002] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.8114 of 2000

ANTHONY J. DUNIN
	Appellant (Defendant)
v.
CAMERON HARRISON	Respondent (Plaintiff)

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JUDGES:	PHILLIPS, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2002
DATE OF JUDGMENT:	15 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 125

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Accident compensation – Transport accident – Motor cycle accident in October 1989 causing injury – Further injury during subsequent medical treatment – Medical negligence alleged – Whether plaintiff inhibited from bringing common law action for damages against doctor – Whether the further injury “a result of a transport accident” – Transport Accident Act 1986 ss.3(1) (definition of “transport accident”), 3(3)(c) and 93(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant (Defendant)	Mr. D.F.R. Beach S.C. with Mr. M. Whelahan	John W. Ball & Sons
For the Respondent (Plaintiff)	Mr. J. Ruskin Q.C. with Mr. M.G. Klemens	John Mathies & Co

PHILLIPS, J.A.:

I agree with Buchanan, J.A. that this appeal should be allowed for the reasons given by his Honour and, as the parties agreed, the respondent's proceeding against the appellant dismissed (on the appellant's application in the County Court) for want of compliance with the conditions laid down by s.93 of the Transport Accident Act 1986.

Mr. Ruskin’s argument that s.93(1) of that Act did not apply depended on two steps: first, that the injury for which the respondent was suing the appellant was a result of the appellant’s operating on the respondent (as obviously it was), and secondly that the operation was not itself a “transport accident” because it was not an incident “directly” caused by or arising out of the driving of the motor cycle. Mr. Beach, however, was content to accept both these steps, while denying the conclusion. His argument was that the injury for which the respondent sued, albeit the result of the operation, was also a result of the accident on the motor cycle on 5 October, an accident which was, beyond argument, a transport accident. I agree with Mr. Beach. Mr. Ruskin’s argument seemed to me to suppose without warrant that if the injury was the result of the operation, then it could not also be a result of the motor cycle accident. I add that at the relevant time, 5 October 1989, the word “directly” appeared in the definition of “transport accident” but not in s.3(3)(c) (and I say nothing about the effect of its subsequent inclusion in s.3[1]).
[1]By the Transport Accident (General Amendment) Act 1984 s.5(4), with effect from 1 January 1995.

In his careful argument, Mr. Ruskin accepted that one consequence of his argument would be to separate injury sustained at the time of the road accident from injury sustained in the course of subsequent medical treatment. The latter, according to his argument, would not be injury within s.93(1) and so, he accepted, would not be injury for which compensation was payable by the Commission under the statutory scheme. Whatever might be the merit of this if negligence was involved in…

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 Dunin v Harrison

Details

AGLC: Dunin v Harrison [2002] VSCA 125
Case: [2002] VSCA 125
Decision Date: 15 August 2002

CaseChat Overview and Summary

Dunin v Harrison was a case before the Supreme Court of Victoria concerning a motor cycle accident that occurred in October 1989, which resulted in injuries to the plaintiff. The plaintiff later sustained further injuries during subsequent medical treatment, leading to an allegation of medical negligence. The central issue before the court was whether the plaintiff was precluded from bringing a common law action for damages against the doctor responsible for the medical treatment, and whether the further injury was considered "a result of a transport accident" within the meaning of the Transport Accident Act 1986.

The court had to determine whether the further injury sustained by the plaintiff during medical treatment was covered under the definition of a "transport accident" as per section 3(1) of the Act, and whether it fell within the scope of section 3(3)(c) of the Act, which refers to injuries caused by the treatment of a person injured in a transport accident. Additionally, the court considered whether section 93(1) of the Act, which pertains to the compensation scheme, precluded the plaintiff from pursuing a common law action against the doctor for damages.

The court ruled that the further injury sustained during medical treatment was indeed "a result of a transport accident" as it was directly linked to the initial motor cycle accident. The court found that the plaintiff was not precluded from bringing a common law action against the doctor for damages, as the statutory compensation scheme did not exclude such actions. Consequently, the plaintiff could pursue both statutory compensation and a common law action for damages against the doctor.

In conclusion, the court determined that the plaintiff was entitled to seek compensation under the Transport Accident Act 1986 for the injuries sustained during the motor cycle accident and any subsequent injuries caused by medical treatment. Furthermore, the plaintiff could also pursue a common law action for damages against the doctor for any negligence that occurred during the medical treatment.

Orders