John Samaras v Transport Accident Commission - [2019] VSCA 255

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2019 0010

JOHN SAMARAS	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	TATE, BEACH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2019
DATE OF JUDGMENT:	11 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 255
JUDGMENT APPEALED FROM:	[2018] VCC 2188 (Judge Saccardo)

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ACCIDENT COMPENSATION – Two transport accidents – ‘Serious injury’ – Injury to spine – Anxiety, depressive condition and post-traumatic stress disorder – Pre-existing conditions – Inconsistency and unreliability of evidence – Whether judge unable to determine on such evidence the effect of the pre-existing conditions, first transport accident, and second transport accident, on applicant’s present condition – Apprehended bias – Whether judge erred in refusing to grant adjournment – Whether judge erred in considering applicant’s prior convictions in assessing reliability and credibility – Humphries v Poljak [1992] 2 VR 129, Transport Accident Commission v Katanas (2017) 262 CLR 550, Mason v Transport Accident Commission [2014] VSCA 267, applied – Davies v Nilsen [2014] VSCA 278 distinguished – Transport Accident Act 1986, ss 93(4)(d), (6), (17) – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
Mr J Samaras in person
For the Respondent	Mr P H Solomon QC with Ms B A Myers	Solicitor to the Transport Accident Commission

TATE JA
BEACH JA
EMERTON JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	2
*The transport accidents*...............................................................................................	4
(1) The first transport accident — 23 December 2010..................................................	4
(2) The second transport accident — 5 June 2011 .......................................................	4
*The judge’s findings about pre-existing conditions, and impairment resulting from the two transport accidents*...............................................................................	5
(1) The pre-existing physical and psychiatric conditions..............................................	6
(2) The physical and psychiatric conditions following the first transport accident.......	8
(3) The physical and psychiatric conditions following the second transport accident..	13
*The judge’s findings about Samaras’ unreliability as a witness*...........................	20
*Proposed grounds of appeal*.......................................................................................	25
*Did the judge err in his assessment of the serious injury claim? — the substantive grounds*.....................................................................................................	28
(1) Did the judge err in not giving sufficient weight to Samaras’ medical evidence about the effect of the second transport accident? (ground 6)...........................................	28
(2) Did the judge err in failing to take into account an affidavit dated 29 November 2018? (ground 9) ...................................................................................................	34
(3) Did the judge err in preferring historical and out-dated medical evidence unrelated to the proceeding? (ground 10)...................................................................................	37
(4) Did the judge err and show bias in finding that Samaras’ diligent conduct of his own case in court demonstrated he was capable of managing his needs? (ground 11) ...	38
*Did the judge err in the manner in which he conducted the case management process and hearing? — the procedural grounds* ....................................................	40
(1) Did the judge err by not disqualifying himself on 6 December 2018? (ground 1)...	40
(2) Did the judge err on 1 June 2018 in not vacating the proceeding to enable Samaras…

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: [2019] VSCA 255
Decision Date: 11 November 2019

CaseChat Overview and Summary

In the case of John Samaras v Transport Accident Commission, the applicant sought compensation for injuries sustained in two separate motor vehicle accidents. The primary issue before the court was whether the judge could reliably determine the extent to which the applicant's current condition was attributable to his pre-existing conditions, the first accident, and the second accident. The applicant argued that the judge was unable to accurately assess these factors due to inconsistencies and unreliability in the evidence provided. Additionally, the applicant contested the judge's refusal to grant an adjournment and questioned whether the judge had erred in considering the applicant's prior convictions when evaluating the reliability and credibility of the evidence.

The court considered whether the evidence presented was sufficiently reliable and consistent for the judge to determine the contribution of the various factors to the applicant's current condition. The court examined the principles from relevant case law, such as Humphries v Poljak and Transport Accident Commission v Katanas, which address the assessment of evidence reliability and the judge's discretion in considering prior convictions. The court also referenced Mason v Transport Accident Commission and Davies v Nilsen to further contextualise the approach to evidence reliability and the handling of adjournment requests. Ultimately, the court found that the judge had properly exercised their discretion in assessing the evidence and did not err in their decisions regarding the adjournment and the consideration of prior convictions.

The court concluded that the judge had not erred in their assessment of the evidence and upheld the decision of the primary judge. The reasoning focused on the judge's ability to make a reliable determination based on the evidence presented, despite its inconsistencies. The court held that the judge appropriately exercised their discretion under the Transport Accident Act 1986. As a result, the application for leave to appeal was refused.

Orders