Findlay v Transport Accident Commission - [2025] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0151

IAN FINDLAY	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2025
DATE OF JUDGMENT:	5 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 126
JUDGMENT APPEALED FROM:	Findlay v Transport Accident Commission [2024] VCC 1621 (Judge Myers)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Applicant’s vehicle collided with truck – Accident caused seatbelt to pull hard across applicant’s stomach – No significant health abnormalities detected by treating physicians immediately following accident – Applicant subsequently experienced abdominal pain in weeks following accident – Applicant re-admitted to hospital and diagnosed with severe colitis – Applicant underwent total colectomy and ileostomy – Causation – Whether probable causal connection between transport accident and colitis – Expert evidence that transport accident a possible cause of colitis – Where applicant was in good health prior to accident – Temporal connection between accident and symptoms of colitis – Application for leave to appeal granted – Appeal allowed.

Transport Accident Act 1986, s 93.

EMI (Australia) Ltd v BES [1970] 2 NSWR 238; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Dahl & Anor v Grice [1981] VR 513, considered; Fox v Percy (2003) 214 CLR 118, referred to.

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Counsel
Applicant:		Mr E Makowski with Ms N Crowe
Respondent:		Mr J Ruskin KC with Mr D Oldfield
Solicitors
Applicant:	Arnold Thomas and Becker
Respondent:	Wisewould Mahony

BEACH JA
KENNEDY JA
KAYE JA:

On 23 November 2020, the applicant was injured in a transport accident, in which his vehicle collided head-on with a truck on Toorongo Road, Loch Valley. The applicant subsequently suffered a severe incidence of colitis. In March 2024, he sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) (‘the Act’), to issue a common law proceeding for damages. The respondent conceded that the long-term impairment consequences of the applicant’s bowel condition constituted a serious injury as defined in s 93(17) of the Act, in that the consequences of the long-term impairment were more than ‘significant’ or ‘marked’, and ‘at least very considerable’. The sole issue in the proceeding was whether the condition was a result of the motor vehicle accident.
The matter was heard before a judge of the County Court on 24 September 2024. In a reserved decision dated 30 October 2024, the judge determined that the evidence did not support a conclusion, on the balance of probabilities, that the motor vehicle accident was a cause of the colitis suffered by the applicant.[1]
[1]Findlay v Transport Accident Commission [2024] VCC 1621 (‘Reasons’).
The applicant seeks leave to appeal the decision on two grounds, namely:
1.The trial Judge erred in finding that upon a consideration of the whole of the evidence the Applicant could not prove on the balance of probabilities that a transport accident on 23 November 2020…

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: [2025] VSCA 126
Decision Date: 5 June 2025

CaseChat Overview and Summary

The plaintiff, Findlay, sought leave to appeal against a decision of the Supreme Court of Victoria, which dismissed his application for leave to commence a common law proceeding against the Transport Accident Commission. Findlay's vehicle collided with a truck, causing him to experience abdominal pain which subsequently led to a diagnosis of severe colitis. He underwent a total colectomy and ileostomy. The Commission had previously dismissed his claim for compensation on the basis that there was no causal link between the accident and his colitis.

The primary legal issue before the court was whether there was a probable causal connection between the transport accident and the colitis. The court considered expert evidence that the accident could have been a possible cause of the colitis, given the temporal connection between the accident and the onset of symptoms, and the absence of any significant health abnormalities prior to the accident. The court also examined the authorities on the question of causation in accident compensation cases, including EMI (Australia) Ltd v BES, Tubemakers of Australia Ltd v Fernandez, Dahl & Anor v Grice and Fox v Percy.

The court found that the expert evidence was sufficient to establish a probable causal connection between the accident and the colitis. The court noted that the accident had caused the seatbelt to pull hard across Findlay's stomach, which may have contributed to the onset of his symptoms. The court also considered the absence of any other identifiable cause of the colitis, and the temporal connection between the accident and the onset of symptoms. The court held that the plaintiff had made out a prima facie case for causation, and granted leave to appeal. On appeal, the court allowed the appeal and remitted the matter to the Supreme Court for further consideration.

The court made no orders as to costs.

Orders