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Fleming v Hutchinson; Conroy v Veit

Fleming v Hutchinson; Conroy v Veit

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Case Copied 15 November 1991 47 min read

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS0 of 1991
B e t w e e n -
WENDY VERONICA FLEMING

Applicant

and
CRAIG HUTCHINSON

Respondent

Office of the Registry

Melbourne No M51 of 1991
B e t w e e n -
NANCIE FLORENCE CONROY

Applicant

and
CAROL ANNE VEIT

Respondent

Applications for special
leave to appeal

MASON CJ
BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 9.38 AM

Fleming

15/11/91

MR J.L. SHER, QC: If the Court pleases, I appear with my learned friend, MR D. MARTIN, for the applicant,

Fleming. (instructed by Riordan & Partners)

MR J.F.M. LARKINS: If the Court pleases, I appear on behalf

of the applicant, Conroy. (instructed by Byrne,
Jones & Torney)

MR A.G. UREN, QC: If the Court pleases, I appear with my

learned friend, MR D.F.R. BEACH, for the respondent

in both cases. (instructed by Maddock Lonie &
Chisholm)

MASON CJ: Mr Sher.

MR SHER:

If Your Honours please. Your Honours, when this

matter came before the Appeal Division of the together as a test case in relation to the proper construction of a provision of the Transport
Accident Act 1986, section 93, which effectively
abolished common law claims for damages for any
person injured in a transport accident in the State
of Victoria, save for persons who had suffered what
the Act referred to as "serious injury".
The Appeal Division split 2:1 in relation to

what the words "serious injury" meant in
section 93, the view of the majority being that the
words were to be given a very narrow meaning, thus
limiting the number of persons who might be able to
bring a common law claim for damages.
Mr Justice McGarvie dissented, taking a more
liberal view of what the words meant and as a
consequence, when it came to apply the majority
view to the facts of the applicant Fleming's case,
the majority took the view that this applicant was
not seriously injured; whereas, Mr Justice McGarvie
said that in his opinion she had been and would
have allowed her to bring a common law action.

So the case, Your Honours, is of general public importance to the whole of the State of
Victoria because the approach to what is "serious
injury" under this Act affects any person injured,
whether they be Victorian or not, in this State in
what is defined as a "transport accident" and that
is defined by the Act as meaning:
an incident directly caused by, or directly
arising out of, the driving of a motor car or
motor vehicle, a railway train or a tram.

So, it has the potential, Your Honours, to affect
the common law rights of millions of people and, in
fact, has in this instance seriously affected the
common law rights of the applicant, Fleming.

Fleming

15/11/91

The point of law that arises is as to the proper…

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: [1991] HCATrans 334
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard applications for special leave to appeal in two cases, *Fleming v Hutchinson* and *Conroy v Veit*. These cases concerned the interpretation of section 93 of the *Transport Accident Act 1986* (Vic), which generally abolished common law claims for damages arising from transport accidents in Victoria, with an exception for those who suffered a "serious injury". The Appeal Division of the Supreme Court of Victoria had been divided on the meaning of "serious injury", with the majority adopting a narrow construction that excluded the applicant Fleming from bringing a common law action.

The central legal issue before the High Court was the proper construction of the term "serious injury" as used in section 93 of the *Transport Accident Act 1986*. This involved determining whether the majority's narrow interpretation, which significantly limited the scope of common law claims, was correct, or if a more liberal interpretation, as advocated by the dissenting judge, was warranted. The significance of this determination extended beyond the individual applicants, as it had the potential to affect the common law rights of millions of people injured in transport accidents in Victoria.

The High Court was required to consider the legislative intent behind section 93 and the meaning of "serious injury" in that context. The court would need to analyse the statutory provisions, including subsection (1) which establishes the general prohibition on recovering damages, and subsection (2)(b) which outlines the exception for serious injury. The differing views of the Appeal Division, particularly the majority's restrictive approach versus the dissenting judge's more expansive interpretation, would form a key part of the High Court's consideration.

Orders