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 suffered serious long-term impairment or loss of a body function — Whether applicant suffered ‘severe’ psychological disturbance or disorder — Whether trial judge failed to adequately assess impairment consequences of applicant’s injuries — Whether trial judge failed to provide adequate reasons — Application for leave to appeal granted — Appeal dismissed — Transport Accident Act 1986 s 93(17); Lu v Mediterranean Shoes (2000) 1 VR 511 applied.
---
APPEARANCES:
Counsel
Solicitors
Applicant
Mr C W R Harrison QC with Ms M J Lang
Ryan Legal
Respondent
Mr J Ruskin QC with Mr R Kumar
Solicitor to the Transport Accident Commission
KYROU JA KAYE JA EMERTON JA:
Introduction
On 11 August 2000, the applicant, Mr Lexa, was injured in a car accident at the intersection of Eleventh Street and Karadoc Avenue, Mildura. He was driving to his workplace when another driver failed to give way and collided with him. Mr Lexa was taken by ambulance to Mildura Base Hospital where it was recorded that the problems with which he presented were ‘MCA, neck pain, chest pain, no LOC’. He continued to have physical problems affecting his neck, shoulders, back and knees thereafter and developed psychological problems that he attributes to the accident.
On 21 April 2017, the applicant applied to the County Court for leave pursuant to s 93 of the Transport Accident Act 1986 (‘the Act’) to commence proceedings for damages in respect of injuries sustained in the accident. He claimed to have suffered ‘serious injuries’ in the form of a serious long-term impairment or loss of body function within the meaning of para (a) of s 93(17) of the Act and a severe long-term mental disorder within the meaning of para (c) of that section.
Section 93(17) of the Act defines ‘serious injury’ as follows:
serious injury means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.
For convenience, we shall refer to the applicant’s claim in respect of his physical injuries as a claim under ‘para (a)’ and his claim in respect of his psychological injuries as a claim under ‘para (c)’. In each case, we are referring to the relevant paragraph of the definition of ‘serious injury’ in s 93(17) of the Act.
On 21 November 2018, a judge of the County Court…
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.
Continue reading Lexa v Transport Accident Commission
Sign in free to access the full text
Details
AGLC
Lexa v Transport Accident Commission [2019] VSCA 123
Case
[2019] VSCA 123
Decision Date
CaseChat Overview and Summary
Lexa brought an application for leave to appeal against the decision of a trial judge to refuse to grant leave to commence proceedings for damages against the Transport Accident Commission. The dispute involves the interpretation of the Transport Accident Act 1986 and the assessment of the applicant’s injuries, including whether she suffered a serious long-term impairment or loss of a body function, and if she suffered a ‘severe’ psychological disturbance or disorder. The court was also required to determine whether the trial judge failed to adequately assess the impairment consequences of the applicant’s injuries, and whether the judge failed to provide adequate reasons for the decision. The applicant sought leave to appeal on the grounds that the trial judge had not correctly applied the law in assessing the severity of her injuries.
The court considered the evidence and submissions regarding the applicant’s injuries and their consequences. It found that the trial judge had applied the correct legal principles but had made an error in assessing the applicant’s psychological disturbance. The court held that the trial judge had failed to adequately assess the impairment consequences of the applicant’s injuries and had not provided adequate reasons for the decision. The court granted the application for leave to appeal but ultimately dismissed the appeal, finding that the applicant had not suffered a serious long-term impairment or loss of a body function, nor a ‘severe’ psychological disturbance or disorder. The court held that the trial judge’s decision was correct and that the applicant was not entitled to bring proceedings for damages against the Transport Accident Commission.
The final orders of the court were that the application for leave to appeal was granted, but the appeal was dismissed. The applicant was not entitled to bring proceedings for damages against the Transport Accident Commission. The court emphasised that the trial judge’s decision was correct and that the applicant’s injuries did not meet the statutory criteria for a serious long-term impairment or loss of a body function, nor a ‘severe’ psychological disturbance or disorder. The court also noted that the trial judge had applied the correct legal principles but had made an error in assessing the applicant’s psychological disturbance.