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Hamidi v Transport Accident Commission

Hamidi v Transport Accident Commission

Case [2023] VSCA 139 9 June 2023

Accident Compensation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0085

TAHEREH HAMIDI	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF JUDGMENT:	9 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 139
JUDGMENT APPEALED FROM:	[2022] VCC 1263 (Judge English)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Spinal injuries – Fractured transverse processes and aggravation of asymptomatic spondylosis – Continuing pain in back and neck – Whether consequences of injury at least very considerable – Whether consequence at least very considerable in light of pre-accident medical conditions – Applicant’s credit in issue – Primary judge not satisfied that consequences satisfied ‘at least very considerable’ test – Reasons – Whether reasons adequate – Inadequacy of reasons – Not clear whether statement in reasons were judge’s findings or recitation of applicant’s evidence – Whether judge failed to make required findings – Whether judge failed to explain why findings were not sufficient to establish seriousness – Application for leave to appeal granted – Appeal allowed – Matter remitted to County Court for rehearing.

Transport Accident Act 1986, s 93.

Humphries v Poljak [1992] 2 VR 129, Hunter v Transport Accident Commission [2005] VSCA 1, applied.

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Counsel
Applicant:		Ms FAL Ryan SC with Ms S Gold
Respondent:		Ms M Britbart KC with Mr S Kumar
Solicitors
Applicant:	YourLawyer Pty Ltd
Respondent:	Lander & Rogers

BEACH JA:
T FORREST JA:
KAYE JA:

On 24 July 2018, the applicant was a back seat passenger in a motor vehicle that collided with a tram (‘the accident’). Following the accident, the applicant was taken to the Alfred Hospital, where, amongst other injuries, she was found to have fractures of her right C7, T1 and T2 transverse processes. Subsequently, the applicant complained of suffering from pain in her back, neck and right shoulder.
In August 2021, the applicant commenced a proceeding in the County Court, seeking leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) to commence a proceeding at common law claiming damages in respect of the injuries she sustained as a result of the accident. The application was heard over two days in May 2022. 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 (‘serious long-term impairment or loss of a body function’). The body functions relied upon by the applicant were the function of her spine and the function of her right shoulder. Additionally, the applicant relied upon paragraph (c) of the definition (‘severe long-term mental or severe long-term behavioural disturbance or disorder’).
On 11 August 2022, the primary judge dismissed the applicant’s application.[1] In essence, the judge was not satisfied that either of the applicant’s physical injuries constituted a serious injury;[2] or that any psychiatric injury arising as a result of the accident was ‘severe’ as required by the Act.[3]
[1]Hamidi…

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.

Continue reading Hamidi v Transport Accident Commission

Details

AGLC: Hamidi v TAC [2023] VSCA 139
Case: [2023] VSCA 139
Decision Date: 9 June 2023

CaseChat Overview and Summary

In the case of Hamidi v Transport Accident Commission, the applicant sought compensation under the Transport Accident Act 1986 for injuries sustained in a transport accident. The applicant, Mr Hamidi, alleged that he suffered spinal injuries, including fractured transverse processes and an aggravation of asymptomatic spondylosis, resulting in ongoing pain in his back and neck. The dispute centred on whether the consequences of these injuries were at least very considerable, taking into account his pre-existing medical conditions.

The primary legal issue before the court was whether the consequences of the applicant's injuries were at least very considerable, as required by section 93 of the Transport Accident Act 1986. The court also needed to determine if the primary judge's reasons were adequate and whether they clearly distinguished between the judge's findings and the applicant's evidence. Furthermore, the court had to assess whether the judge made the required findings and whether the judge adequately explained why the findings were not sufficient to establish the seriousness of the injuries.

The Court of Appeal found that the primary judge's reasons were inadequate. The reasons were unclear, and it was not evident whether certain statements were the judge's findings or a recitation of the applicant's evidence. The Court of Appeal held that the judge failed to make the required findings and did not adequately explain why the findings were not sufficient to establish the seriousness of the applicant's injuries. Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and remitted the matter to the County Court for rehearing. The Court of Appeal referenced Humphries v Poljak and Hunter v Transport Accident Commission to support its decision.

Orders