| 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…
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- Case
- [2023] VSCA 27
- Decision Date
CaseChat Overview and Summary
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.
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