TRANSPORT ACCIDENT COMMISSION and MICHAEL AVALANCHE
Respondents
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JUDGES:
BATT, VINCENT and NETTLE, JJ.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
9 December 2004
DATE OF JUDGMENT:
10 February 2005
MEDIUM NEUTRAL CITATION:
[2005] VSCA 1
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ACCIDENT COMPENSATION – Transport accident – Serious injury – Severe long-term mental or severe long-term behavioural disturbance or disorder – Judge’s reasons for refusing leave inadequate – Application re-determined on appeal – Leave to proceed granted – Transport Accident Act 1986, ss.93(17); 93(4)(d); County Court Act 1958, s.74(3).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr. J.D. Philbrick with Mr. G.D. Dalton
Maurice Blackburn Cashman
For the Respondents
Mr. J. Ruskin Q.C. with Mr. P.H. Solomon
Solicitor to the Transport Accident Commission
BATT, J.A.:
The main contention for the applicant (as I shall call her) before this Court was that the primary judge failed to deal adequately or (almost) at all with the applicant’s claimed loss of income-earning capacity since her accident and that, properly assessed, that loss showed that she had a “serious injury” within paragraph (c) of the definition of that expression. I agree with Nettle, J.A., whose reasons for judgment I have had the benefit of reading, that, for the reasons he gives, the contention should be upheld and error of law in her Honour’s reasons held to have been made out.
I agree also with Nettle, J.A.’s conclusion that error of law is established in her Honour’s reasons concerning the psychiatric and psychological evidence bearing on whether the applicant had a severe long-term mental or behavioural disturbance or disorder. I agree that the reasons are inadequate in the ways his Honour demonstrates and that, properly assessed, the evidence established such a disturbance or disorder.
Finally, I agree in the disposition of the matter proposed by his Honour.
VINCENT, J.A.:
I agree with the disposition of this matter as proposed by Nettle, J.A. for the reasons advanced by him in his judgment.
NETTLE, J.A.:
This is an application for leave to appeal from a judgment and orders of a judge of the County Court, given and made on 22 August 2003. By her orders the judge dismissed the appellant’s application for leave pursuant to s. 93(4)(d) of the Transport Accident Act1986 to bring a proceeding for the recovery of damages in respect of an injury said to have been sustained in a transport accident on 8 March 1997. The applicant contends that the judge’s decision is manifestly and wholly erroneous and further or alternatively that the judge erred by failing to take into
account the substantial loss of earnings which the applicant is said to have suffered by reason of the injury.
The facts
This matter is unfortunately old. The applicant instituted her application for leave by originating motion filed in the County Court on 20 March 2002. It did not come on for hearing until 5 August 2003 and after a hearing that extended…
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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Hunter v Transport Accident Commission [2005] VSCA 1
Case
[2005] VSCA 1
Decision Date
CaseChat Overview and Summary
The appellant, Hunter, sought leave to appeal a decision of the Court denying her application for compensation under the Transport Accident Act 1986. Hunter contended that the judge's reasons for refusing her application were inadequate. The respondent, the Transport Accident Commission, opposed the application, arguing that Hunter's appeal was hopeless. The case was heard in the County Court of Victoria.
The legal issues before the court were whether Hunter's grounds of appeal demonstrated that the judge's reasons for refusing leave were inadequate and whether the appeal had a reasonable chance of success. The court had to consider whether the appeal raised a question of law that was significant and whether the judge's reasons for refusing leave were adequate and sufficient. The court also had to determine whether the appeal had a reasonable chance of success and whether it was in the interests of justice to grant leave.
The court found that the judge's reasons for refusing leave were inadequate as they did not address Hunter's argument that she suffered a severe long-term mental or severe long-term behavioural disturbance or disorder. The court held that the question of whether Hunter suffered such a disturbance or disorder was significant and involved an error of law. The court also found that the appeal had a reasonable chance of success and that it was in the interests of justice to grant leave. The court granted leave to appeal and re-determined the application.
The court ordered that Hunter's application for compensation be re-determined on appeal. The court held that Hunter's grounds of appeal were sufficient to establish that the judge's reasons for refusing leave were inadequate and that the appeal had a reasonable chance of success. The court found that the question of whether Hunter suffered a severe long-term mental or severe long-term behavioural disturbance or disorder was significant and involved an error of law. The court concluded that it was in the interests of justice to grant leave to appeal and re-determine the application.