Love v TAC (No 2) - [2017] VSC 584

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT LATROBE VALLEY
COMMON LAW DIVISION

S CI 2014 05193

DARREN LOVE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	14–24 August 2017
DATE OF JUDGMENT:	28 September 2017
CASE MAY BE CITED AS:	Love v TAC (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 584

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ACCIDENT COMPENSATION – Plaintiff suffered injury as a consequence of a 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 Act1986 – Whether unidentified driver was negligent – Physical injury – Neuropathic pain – Psychiatric injury – Plaintiff suffering from post-traumatic stress disorder and severe chronic adjustment disorder with depression – Pre-existing physical and psychiatric conditions – Plaintiff awarded damages – s 96 of the Transport Accident Act1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. O’Dwyer QC with Mr A. Hill	Slater & Gordon
For the Defendant	Ms R. Annesley QC with Mr A. Saunders	Transport Accident Commission

HER HONOUR:

Introduction

The plaintiff alleges that on 15 August 2011 he was travelling along Cheltenham Road, Dandenong on a motor scooter in the far right lane, when a motor vehicle travelling in the middle lane moved into the plaintiff’s lane, causing a collision to occur and causing him to take evasive action, which resulted in him putting his left foot on the ground to avoid the motor scooter skidding from under him and hitting the ground (‘the incident’).[1] The plaintiff alleges that as a result of the incident he has sustained serious injury to his left leg, ongoing neuropathic pain and post-traumatic stress disorder (‘PTSD’) with depression.
[1]Amended statement of claim dated 14 August 2017. The amended statement of claim at [2] pleads the incident occurred on 16 August 2011. This is a careless error, which was made on the original statement of claim dated 23 September 2014 and then not corrected in the amended statement of claim filed in court on day one of the trial.

The plaintiff makes a claim for general damages only.

This trial commenced on 14 August 2017. On the seventh day of the trial following the defendant’s closing submissions to the jury, the plaintiff made an application to discharge the jury. The application was heard on the eighth day of the trial, following which I ruled that the jury was to be discharged with no verdict. I continued to hear the trial as a cause.[2]
[2]See Darren Love v Transport Accident Commission [2017] VSC 491 (Zammit J).

The law

In Victoria, where a plaintiff suffers an injury as a consequence of an accident with an unidentified vehicle, the plaintiff may, pursuant to s 96 of the Transport Accident Act 1986 (‘the Act’), recover damages from the Transport Accident Commission (‘TAC’) in place of the unidentified driver.

The plaintiff must prove on the balance of probabilities that he was involved in…

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 Love v TAC (No 2)

Details

AGLC: Love v TAC (No 2) [2017] VSC 584
Case: [2017] VSC 584
Decision Date: 28 September 2017

CaseChat Overview and Summary

In the case of Love v TAC (No 2), the plaintiff, Love, was involved in a motor vehicle accident with an unidentified vehicle and driver. The dispute centred on the plaintiff's claim for damages against the Transport Accident Commission (TAC) under section 96 of the Transport Accident Act 1986. The plaintiff sought compensation for physical injuries, neuropathic pain, and psychiatric injuries, including post-traumatic stress disorder and severe chronic adjustment disorder with depression. Additionally, the plaintiff contended with pre-existing physical and psychiatric conditions. The court was tasked with determining whether the unidentified driver was negligent and if the plaintiff's injuries were a direct consequence of the accident.

The court needed to ascertain if the unidentified driver's negligence contributed to the plaintiff's injuries and whether the plaintiff's pre-existing conditions exacerbated the situation. Furthermore, the court had to evaluate the extent of the plaintiff's physical and psychiatric injuries, including neuropathic pain, post-traumatic stress disorder, and severe chronic adjustment disorder with depression. The court also had to determine the appropriate compensation under section 96 of the Transport Accident Act 1986.

In its decision, the court found that the unidentified driver's negligence was a contributing factor to the plaintiff's injuries. The court acknowledged the plaintiff's pre-existing conditions but determined that the accident significantly exacerbated these conditions. The plaintiff was awarded damages for the physical injuries, neuropathic pain, and psychiatric injuries, taking into account the pre-existing conditions. The court awarded compensation under section 96 of the Transport Accident Act 1986, recognising the severity of the plaintiff's injuries and the impact on their quality of life.

Orders