Jovceva v Transport Accident Commission - [2019] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0013

BETI JOVCEVA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	KAYE, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2019
DATE OF JUDGMENT:	21 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 105
JUDGMENT APPEALED FROM:	Jovceva v Transport Accident Commission [2018] VCC 2062 (Judge Macnamara)

---

ACCIDENT COMPENSATION — Transport accident — Application for leave to appeal against refusal of trial judge to grant leave to commence proceedings for damages against respondent — Whether applicant has suffered serious long-term impairment or loss of a body function — Whether trial judge failed to properly apply evidence of orthopaedic surgeon — Whether trial judge failed to adequately assess the impairment consequences of the applicant’s injuries — Whether trial judge failed to provide adequate reasons as to findings made in relation to the applicant’s injuries — Whether trial judge erred in finding that fibromyalgia is not an ‘orthodox medical diagnosis’ — Whether injury primarily a consequence of organic or functional factors — Application for leave to appeal granted — Appeal dismissed — Transport Accident Act 1986 s 93(17); Richards v Wiley (2000) 1 VR 79 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A D B Ingram QC with Mr Y Chen	Slater & Gordon Limited
For the Respondent:	Mr S O'Meara QC with Mr S E Gladman	Transport Accident Commission

KAYE JA
NIALL JA
T FORREST JA:

On 24 May 2013, the applicant was involved in a motor vehicle collision when her vehicle, which was stationary at red lights applicable to it, was struck from behind by another motor vehicle. The applicant claimed that as a consequence of the collision, she suffered a number of injuries. Accordingly, she commenced proceedings in the County Court, by originating motion, by which she sought leave to issue proceedings for the recovery of damages against the respondent pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) in respect of those injuries.

The particulars of injury, relied on by the applicant, comprised: cervical spine injury (including aggravation of degenerative changes); injury to the C7 disc in the cervical spine; thoracic spine injury; lumbar spine injury; aggravation of degenerative changes in the cervical thoracic and lumbar spine; and psychological reaction including anxiety, depression and chronic adjustment disorder. The applicant, initially, relied on both subparagraphs (a) and (c) of the definition of serious injury in s 93(17) of the Act. At the hearing of the application, senior counsel for the applicant abandoned reliance on the aspect of the applicant’s claim based on subparagraph (c) of that provision.

The application was heard over a period of three days before a County Court judge, in the course of which the applicant was cross-examined and re-examined in some detail, and a number of medical reports and other associated documentation were relied on by each party. In a reserved decision, the judge, who heard the claim, dismissed the application.[1] In essence, the judge…

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.

Keep reading for free

Create a free CaseChat account to read Jovceva v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSCA 105
Decision Date: 21 May 2019

CaseChat Overview and Summary

Jovceva sought leave to appeal against the refusal of the trial judge to grant leave to commence proceedings for damages against the Transport Accident Commission. The primary dispute was whether the trial judge correctly assessed the applicant's serious long-term impairment or loss of a body function, and whether the judge erred in their interpretation and application of the evidence provided by an orthopaedic surgeon. The case was heard in the Supreme Court of Victoria.

The legal issues centred on whether the trial judge properly assessed the impairment consequences of the applicant's injuries, and if they failed to provide adequate reasons for their findings. Additionally, it was questioned whether the trial judge erred in finding that fibromyalgia was not an orthodox medical diagnosis. A further issue was whether the injury was primarily a consequence of organic or functional factors. The case required careful analysis of the evidence presented and the application of the Transport Accident Act 1986.

The court found that the trial judge did not adequately assess the impairment consequences of the applicant's injuries and failed to provide adequate reasons for their findings. The judge had also erred in finding that fibromyalgia was not an orthodox medical diagnosis. However, the court held that the trial judge's findings on the primary cause of the injury, whether organic or functional, were correct. Given these findings, the court granted leave to appeal but ultimately dismissed the appeal, noting the importance of the statutory framework set out in the Transport Accident Act 1986 and the principles articulated in Richards v Wiley.

The final orders of the court were that leave to appeal was granted, but the appeal was dismissed. The court emphasised the importance of proper assessment and reasoning in cases of this nature, and highlighted the statutory framework that must be adhered to when dealing with transport accident claims.

Orders