Hettiarachchi v Transport Accident Commission - [2023] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0024

KUSHAN HETTIARACHCHI	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF JUDGMENT:	23 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 27
JUDGMENT APPEALED FROM:	[2021] VCC 2060 (Judge Robertson)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Applicant suffered injuries to left shoulder and cervical spine – Application refused – Where finding that applicant stopped playing cricket because of low back injury rather than injuries suffered in accident – Whether failure to provide reasons – Whether judge erred in making finding – Leave to appeal refused.

Transport Accident Act 1986, ss 93(4)(d), 93(6), 93(17)(a).

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Counsel
Applicant:		Mr D McWilliams with Mr P Santamaria
Respondent:		Mr PF Solomon KC with Ms FC Spencer
Solicitors
Applicant:	Maxiom Injury Lawyers
Respondent:	HWL Ebsworth Lawyers

BEACH JA
KENNEDY JA
J FORREST AJA:

Kushan Hettiarachchi applies for leave to appeal from a decision of the County Court refusing his application for leave to commence common law proceedings for damages in respect of the injuries he sustained in a transport accident on 19 June 2018.
The applicant is precluded from instituting common law proceedings for the damages claimed unless he receives leave from a court pursuant to s 93(4)(d) of the Transport Accident Act 1986 (the ‘Act’). The court must not grant such leave unless it is satisfied the injury is a ‘serious injury’.[1] For the purposes of this application the relevant definition of ‘serious injury’ is ‘serious long-term impairment or loss of a body function’.[2] The body functions relied upon are the applicant’s left shoulder and cervical spine.
[1]Section 93(6) of the Act.
[2]Section 93(17)(a); the applicant withdrew any reliance on sub-para (c) of the definition at the hearing.
In her reasons for judgment delivered on 17 December 2021, a County Court judge concluded that neither the impairment consequences of the applicant’s left shoulder injury, nor his cervical spine injury, reached the required level to constitute a ‘serious injury’. By orders made on 31 January 2022, the judge refused the application with costs.
A key focus of the application before the judge was the applicant’s claim that his left shoulder and neck injuries had left him unable to enjoy his passion for cricket. However, the judge found that the applicant stopped playing cricket because of a low back injury, and not because of the injuries to his shoulder or cervical spine (the ‘cricket finding’). It followed that the inability to play cricket was not a consequence of the injuries suffered in the accident.
The applicant’s sole challenge to the judge’s conclusion was in respect of the cricket finding which he submitted was made in error and/or without adequate reasons. However, for the reasons which follow, we have determined that the judge made no error in making the cricket finding and provided ample reasons for making it. The result is that leave to…

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: [2023] VSCA 27
Decision Date: 23 February 2023

CaseChat Overview and Summary

In the case of Hettiarachchi v Transport Accident Commission, the applicant, Hettiarachchi, sought compensation for injuries sustained in a transport accident. Hettiarachchi claimed that the accident caused injuries to his left shoulder and cervical spine. The Transport Accident Commission contested the claim, arguing that Hettiarachchi's cessation of playing cricket was due to a low back injury rather than the injuries sustained in the accident. The dispute was ultimately heard by the Court of Appeal.

The central legal issue in this case was whether the judge made an error in concluding that Hettiarachchi stopped playing cricket due to his low back injury instead of the injuries resulting from the accident. This issue necessitated a review of the evidence presented and the reasoning behind the judge's decision. The applicant argued that the judge's failure to provide explicit reasons for the finding was a critical error. The court needed to determine if the judge's conclusion was legally sound and if the evidence adequately supported it.

The court examined the evidence regarding Hettiarachchi's back issues and the reasons for his cessation of playing cricket. The court found that the judge's conclusion was both open and correct, given the evidence presented. The court rejected the applicant's argument that the judge erred in making the finding about the cricket cessation. The court concluded that the judge did not need to explicitly state the reason for the finding, as the overall conclusion was supported by the evidence. As a result, the applicant's submissions regarding the alleged error in the judge's reasoning were rejected.

The court ultimately decided that leave to appeal would be refused, affirming the decision of the lower court. The evidence provided was deemed sufficient to support the judge's conclusion, and no legal error was found in the reasoning process. The applicant's application for compensation was thus denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In reality, the judge only needed to conclude that she was not satisfied that the applicant stopped playing cricket because of his left shoulder injury or neck injury. That is, she did not need to expressly find that he stopped playing cricket because of his low back injury. Nevertheless, given the ample evidence about the applicant’s back issues, we consider that the cricket finding was not only open, but undoubtedly correct. More particularly, the applicant’s submissions that the judge erred in making the cricket finding must be rejected. Conclusion Leave to appeal will be refused.---

Ratio Decidendi

Legal Principle Established

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