| 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
Copyright in the High Court of Australia
| Fleming | 1 | 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 thatis 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 thecommon law rights of the applicant, Fleming.
| Fleming | 2 | 15/11/91 |
The point of law that arises is as to the proper…
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- Case
- [1991] HCATrans 334
- Decision Date
CaseChat Overview and Summary
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.
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