Lakic v TAC - [2014] VSC 291

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2012 06464

BOGDANKA LAKIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 & 30 May 2014 & 2 June 2014
DATE OF JUDGMENT:	20 June 2014
CASE MAY BE CITED AS:	Lakic v TAC
MEDIUM NEUTRAL CITATION:	[2014] VSC 291

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ACCIDENT COMPENSATION – Plaintiff suffered injury as a consequence of motor vehicle accident with an unidentified vehicle and driver – Plaintiff seeking damages against the Transport Accident Commission pursuant to s 96 of the Transport Accident Act 1986 – Psychiatric injury - Plaintiff suffering chronic pain syndrome, associated anxiety depressive illness and post-traumatic stress disorder – Whether unidentified driver was negligent - Whether plaintiff was guilty of contributory negligence – Whether plaintiff was exaggerating condition to treating doctors – Plaintiff awarded damages - Transport Accident Act ss 93, 96, 96(2)(a), 96(2)(b).

DAMAGES - Whether award of pain and suffering damages should be a discounted or apportioned to reflect the consequences or contribution of two subsequent motor vehicle accidents – Award for past and future pecuniary loss.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr G. Lewis QC with Ms M. Wolski	Transport Accident Commission

HIS HONOUR:

Introduction

The plaintiff was born on 26 March 1967 in Bosnia. She left school at age 16 or 17. Soon after leaving school, she married; with her husband and then two young sons she migrated to Australia in November 1995.

On 15 May 2000, the plaintiff alleges she was involved in a motor vehicle accident on Ferntree Gully Road, Ferntree Gully, when she was forced to swerve heavily to avoid colliding with a motorcycle that had suddenly cut in front of her vehicle (the ‘First Incident’). As a consequence of swerving, the plaintiff’s motor vehicle spun around on the roadway, eventually colliding with an embankment on the side of the road. The plaintiff maintains that as a result of the First Incident she suffered serious injury.

The driver of the motorcycle was not able to be identified, thus the plaintiff seeks damages against the Transport Accident Commission (‘TAC’) pursuant to s 96 of the Transport Accident Act 1986 (‘the Act’).

At the time of the First Incident, the plaintiff was working as a packer at Arnott’s Biscuits. She had been in this employment since 1997. The plaintiff stated she worked as a casual, but it was in effect regular employment.

The plaintiff at trial was self-represented. She needed the assistance of an interpreter in providing evidence and asking questions during the course of the trial.

Section 96 of the Act

In circumstances where an unidentified vehicle is involved in a transport accident,[1] the plaintiff, pursuant to s 96(2)(a) of the Act, is required within a reasonable time to provide the TAC with a notice detailing the particulars of the circumstances of the accident and the nature of the injuries sustained. Further, pursuant…

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: [2014] VSC 291
Decision Date: 20 June 2014

CaseChat Overview and Summary

In the case of Lakic v TAC, the plaintiff, Lakic, was involved in a motor vehicle accident with an unidentified vehicle and driver. Lakic suffered injuries and sought damages against the Transport Accident Commission under section 96 of the Transport Accident Act 1986. The plaintiff claimed damages for psychiatric injuries, including chronic pain syndrome, associated anxiety depressive illness, and post-traumatic stress disorder. The court had to determine whether the unidentified driver was negligent, whether the plaintiff was guilty of contributory negligence, and whether the plaintiff exaggerated their condition to treating doctors. The court found in favour of the plaintiff and awarded damages.

The court considered several legal issues, including whether the unidentified driver was negligent and whether the plaintiff was guilty of contributory negligence. The court also considered whether the plaintiff was exaggerating their condition to treating doctors. The court held that the unidentified driver was negligent, and the plaintiff was not guilty of contributory negligence. The court also found that the plaintiff was not exaggerating their condition to treating doctors.

The court's reasoning was based on the evidence presented and the applicable law. The court found that the plaintiff's injuries were a direct result of the motor vehicle accident and that the unidentified driver was negligent. The court also found that the plaintiff was not guilty of contributory negligence and that there was no evidence to suggest that the plaintiff was exaggerating their condition to treating doctors. The court awarded the plaintiff damages for their injuries and losses.

The court made several orders, including an award of damages for past and future pecuniary loss. The court also considered whether the award of pain and suffering damages should be discounted or apportioned to reflect the consequences or contribution of two subsequent motor vehicle accidents. The court found that the award of pain and suffering damages should not be discounted or apportioned, as the plaintiff's injuries were a direct result of the initial motor vehicle accident.

Orders