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Haidar v Transport Accident Commission

Haidar v Transport Accident Commission

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Case Copied 29 July 2016 21 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0066

SUSANNE HAIDAR	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	WEINBERG and BEACH JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2016
DATE OF JUDGMENT:	29 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 182
JUDGMENT APPEALED FROM:	[2016] VCC 489 (Judge Tsalamandris)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Application for leave to appeal from order dismissing serious injury application – Wrist injury – Modest injury – Credibility of the applicant – Credibility findings adverse to applicant – Other accidents – Other injuries – Judge not satisfied of serious injury – No error in judge’s conclusion – Whether reasons inadequate – No inadequacy in judge’s reasons – Application for leave to appeal refused – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D J N Purcell with Ms J Frederico	Zaparas Lawyers
For the Respondent	Mr S A O’Meara QC with Mr S E Gladman	Solicitor to the Transport Accident Commission

WEINBERG JA
BEACH JA
CAVANOUGH AJA:

Introduction

On 20 March 2010, the applicant (Ms Susanne Haidar) was involved in a transport accident when a motor vehicle driven by another person made a right-hand turn across the path of the motor vehicle that she was then driving, and a collision ensued. Following the collision, the applicant was taken to the Dandenong Hospital. She claimed that she suffered injuries to her right wrist, chest, right hip and lower back.

By an originating motion filed in the County Court on 18 November 2013, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for the injuries she sustained as a result of the collision. The application was heard at the County Court on 11 and 12 April 2016. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long term impairment or loss of a body function’. The body function relied upon by the applicant was the function of the right hand. The applicant’s case was that the function of her right hand was impaired by the injury she alleged that she sustained as a result of the collision.

On the hearing of the application, the applicant relied upon two affidavits that she had affirmed on 3 September 2013 and 1 April 2016 respectively. The parties tendered various documents, including medical reports, medical records, pay slips, payment summaries and video surveillance taken of the applicant on 19 February 2015. The applicant was the only witness to give viva voce evidence.

On 29 April 2016, the judge dismissed the applicant’s application.[1] The applicant seeks leave to appeal. The matter has been dealt with on the basis that, if leave to appeal is granted, the appeal would be treated as having been heard instanter. The applicant’s…

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: [2016] VSCA 182
Decision Date: 29 July 2016

CaseChat Overview and Summary

The appellant, Haidar, applied for leave to appeal from a decision of the respondent, the Transport Accident Commission, dismissing his serious injury application. The dispute involved a wrist injury sustained in a transport accident, which Haidar argued qualified as a serious injury under the Transport Accident Act 1986. The case was heard in the County Court of Victoria.

The court was required to determine whether the judge's decision to dismiss the serious injury application was correct, and whether the judge's reasons for that decision were adequate. Specifically, the court needed to assess whether the judge erred in finding that Haidar's injury was modest, and whether the judge's reasons adequately explained why Haidar's credibility was found to be lacking in light of other accidents and injuries.

The court found that the judge did not err in concluding that Haidar's wrist injury was modest. The court noted that the judge had considered all relevant factors, including the nature and extent of the injury, Haidar's credibility, and the impact of other accidents and injuries. The court also found that the judge's reasons were adequate and provided a clear explanation of the basis for the decision. The court held that there was no inadequacy in the judge's reasons, and that Haidar had not demonstrated that the judge's decision was incorrect. Accordingly, the court refused leave to appeal.

The court made no orders for costs.

Orders