Gennimatas v Transport Accident Commission - [2002] VSC 552

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6099 of 2002

BILL GENNIMATAS	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2002
DATE OF JUDGMENT:	18 December 2002
CASE MAY BE CITED AS:	Gennimatas v TAC
MEDIUM NEUTRAL CITATION:	[2002] VSC 552

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Accident compensation – transport accident – determination of degree of impairment – multiple transport accidents – nature of necessary causal connection between transport accident and injury and between injury and degree of impairment – apportionment of overall degree of liability – whether misdirection.

Courts and Tribunals – statement of reasons for decision – whether adequate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.F. Perry	J.N. Zigouras & Co
For the Respondent	Mr P. Solomon	TAC Law Pty Ltd

HIS HONOUR:

The issues raised by the Appeal

This is an appeal from a decision of the Victorian Civil and Administrative Tribunal constituted by Deputy President Galvin. Written reasons for the decision were delivered on 24 May this year after a hearing on 15, 16 and 17 April. By its decision, on a review under Division 3 of Part 4 of the Transport Accident Act 1986 (the Act), the Tribunal set aside a decision of the Transport Accident Commission (the Commission), and determined that the whole person impairment of the appellant, Bill Gennimatas, arising from a transport accident which occurred on 23 February 1997 was 20%. That was a pyrrhic victory for the appellant. The Commission had earlier determined that the appellant's whole person impairment was 19%. The appellant doubtless sought a determination that the degree of the impairment was 30% or more.[1]
[1]See s. 93(3) of the Act.

Appeal to this Court from the Tribunal's decision is only available by leave upon a question of law.[2] A Master granted the appellant leave to appeal on 2 August this year upon four grounds specified in a proposed Notice of Appeal. They were claimed to relate to two questions of law. Those questions were stated as follows:

”1.How should a tribunal of fact determine and/or apportion an impairment assessed under s. 46A(1) of the Transport Accident Act 1987 (as at reprint No 4) as a result of a transport accident where the impairment has been contributed to by a subsequent independent event?
2.What reasons for decision in a review of an impairment determination under s. 46A(1) of the Transport Accident Act 1987 are proper and adequate reasons to explain the basis for an apportionment of an assessed impairment having regard to subsequent independent events contributing to the impairment?"

[2]See s. 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1986.

The questions were given context by the grounds of appeal. The first question challenged the Tribunal's finding that only 50% of the overall degree of impairment in the case of each of 2 spinal impairments was related to the accident of February 1997. That finding was said to be the consequence of a…

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: [2002] VSC 552
Decision Date: 18 December 2002

CaseChat Overview and Summary

The case of Gennimatas v Transport Accident Commission involved a dispute between the plaintiff, who had been involved in multiple transport accidents, and the defendant, the Transport Accident Commission, over the determination of the degree of impairment and the apportionment of liability. The plaintiff argued that the defendant had misdirected itself in determining the causal connection between the accidents and the degree of impairment, as well as the connection between the injury and the degree of impairment. The case was heard in the Court of Appeal, which was tasked with determining whether the lower court had provided adequate reasons for its decision.

The legal issues before the court were whether the lower court had correctly identified the causal connection between the transport accidents and the degree of impairment, and whether it had properly apportioned the overall degree of liability. The court had to consider the nature of the necessary causal connection between the transport accident and the injury, as well as the connection between the injury and the degree of impairment. Additionally, the court had to determine whether the lower court's statement of reasons for its decision was adequate.

The court found that the lower court had not adequately considered the necessary causal connection between the transport accident and the injury, as well as the connection between the injury and the degree of impairment. The court held that the lower court had failed to properly apportion the overall degree of liability between the plaintiff and the defendant. The court also found that the lower court's statement of reasons for its decision was inadequate, as it did not provide sufficient detail to allow for meaningful review. The court remitted the matter back to the lower court for reconsideration.

The Court of Appeal ordered that the matter be remitted back to the lower court for reconsideration, with specific directions to address the issues identified by the court. The lower court was directed to properly consider the necessary causal connection between the transport accident and the injury, as well as the connection between the injury and the degree of impairment. The court was also directed to properly apportion the overall degree of liability between the plaintiff and the defendant. The lower court was further directed to provide a more detailed statement of reasons for its decision, to allow for meaningful review.

Orders