Marie Stephens v Transport Accident Commission - [2019] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0156

MARIE STEPHENS	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	WHELAN and T FORREST JJA and KENNEDY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2019
DATE OF JUDGMENT:	18 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 234
JUDGMENT APPEALED FROM:	[2018] VSC 667 (McDonald J)

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ACCIDENT COMPENSATION – Negligence – Motor vehicle accident – Finding of fact re length of time indicator on – Finding based on assessment of witnesses – No error – Fox v Percy (2003) 214 CLR 188 ; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 applied.

APPORTIONMENT OF LIABILITY – Whether trial judge erred in finding applicant 90 per cent liable for collision – Whether trial judge failed to give due consideration to position of driver following/overtaking – No error – Transport Accident Act 1986 s 104 – House v The King (1936) 55 CLR 499 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B McTaggart SC with Ms F Ryan	Lander & Rogers
For the Respondent	Mr S A O’Meara QC with Mr S E Gladman	Wisewould Mahoney

WHELAN JA
T FORREST JA
KENNEDY AJA:

On 8 February 2013, Mr Quentin Blackmore was riding his motorbike in a southerly direction along the Midland Highway in Perth, Tasmania. He was riding with his friend, Mr Ivan Coyle. As Mr Blackmore was passing through the town of Perth, he took up a position behind a Toyota Corolla being driven by the applicant, Ms Stephens, travelling in the same direction. The applicant’s husband was a front seat passenger in the car.

Between the intersections of Old Bridge Road and Eskleigh Nursing Home Road (‘ENH Road’), Mr Blackmore commenced to overtake the applicant’s vehicle, pulling out into the right-hand lane as he did so. At the point Mr Blackmore commenced to overtake Ms Stephens’ vehicle, broken white lines, permitting him to overtake, divided the Midland Highway. A speed limit of 60 kilometres per hour applied.

Prior to the collision, the applicant commenced turning her vehicle right, intending to enter ENH Road. As she did so, the right front of her car collided with Mr Blackmore’s motorcycle as Mr Blackmore was attempting to overtake the vehicle. Mr Blackmore was thrown onto the road and sustained serious injuries.

Mr Blackmore lodged a claim for compensation in respect of his injuries and resulting incapacity under the Transport Accident Act 1986 (‘the Act’). The claim was accepted and the respondent paid compensation to Mr Blackmore.

On 19 October 2017, the respondent filed proceedings in the Supreme Court of Victoria, seeking indemnity from Ms Stephens in respect of the compensation paid to Mr Blackmore pursuant to s 104 of the Act. This provided for the Commission to be indemnified for such proportion ‘as is appropriate to the degree to which the injury was attributable to the act, default or negligence of [Ms Stephens].’

At the time of the hearing, there was no issue that the compensation…

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 234
Decision Date: 18 October 2019

CaseChat Overview and Summary

Marie Stephens commenced proceedings against the Transport Accident Commission, seeking compensation for injuries sustained in a motor vehicle accident. The case was heard in the Supreme Court of Victoria, where the central issues were the determination of negligence and the apportionment of liability. The first issue involved the question of whether the trial judge correctly found that Ms Stephens' indicator was on for an extended period before the collision. The second issue was whether the trial judge erred in finding Ms Stephens 90% liable for the collision, particularly regarding the driver who was following and overtaking her at the time.

In addressing these issues, the court considered the evidence presented by both parties. Regarding the length of time the indicator was on, the court relied on the assessment of the witnesses and found that there was no error in the trial judge's determination. The court applied the principles from Fox v Percy and Robinson Helicopter Co Inc v McDermott, affirming that findings of fact are to be respected unless there is clear error. Concerning the apportionment of liability, the court found no error in the trial judge's consideration of Ms Stephens' actions, especially her failure to maintain an appropriate speed and position relative to the vehicle she was overtaking. The court referenced House v The King to support its decision that the trial judge properly applied the Transport Accident Act 1986.

The Supreme Court of Victoria upheld the trial judge's findings, affirming that there was no error in the assessment of the evidence or the apportionment of liability. The appeal was dismissed, and the original decision was maintained. Consequently, the court's final order was that the appeal was dismissed, and costs were awarded to the respondent.

Orders