Appeal against judge’s determination to grant leave to bring proceedings pursuant to s.93 Transport Accident Act 1986 – Judge’s satisfaction that injury was “serious” within meaning of s.93(17) – Whether failure to apply “correct test” – Whether reasons given by judge inadequate – Functions of judge explained – Transport Accident Act 1986, s.93 – Form of “authenticated order” – Appropriate form of order explained.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr. R.P. Gorton, Q.C. with Mr. A.D. Clements
TAC Law Pty. Ltd.
For the Respondent
Mr. A.W. Adams, Q.C. with Mr. J.P. Constable
Petersons
WINNEKE, P.:
This is an appeal by David Nichols and the Transport Accident Commission against a decision of the County Court granting leave to the respondent, Phillip Robinson, pursuant to s.93(4)(d) of the Transport Accident Act 1986, to bring a claim for common law damages for a "serious injury" arising out of a transport accident.
On 7 March 2000 a judge of the County Court, upon application by the respondent, determined that the injury which he had suffered in the accident on 20 September 1996 was a "serious injury" within the meaning of s.93(17) of the Act and that, in accordance with sub-s.(4)(d) and sub-s.(6) of the section, the respondent should have the leave sought. Leave to appeal was granted by this Court to the appellants on 31 March 2000.
The Act provides that a person injured in a transport accident is not entitled to bring a claim for common law damages unless, inter alia, he satisfies the County Court that he has suffered a "serious injury". Relevantly, s.93(17) of the Act defines serious injury as:
"(a) serious long-term impairment or loss of a body function."
The judge determined to grant the leave sought by the respondent after a hearing which had taken place in the County Court at Geelong on 28 and 29 February 2000.
The appellants appealed against the decision basically upon the following grounds:
(a)that the judge failed to apply the correct test in determining whether the respondent's injury was a “serious injury". It is contended that the judge failed to consider whether the impairment of body function was "very considerable" when judged by cases within the range of possible impairment or loss[1].
(b) that the judge's reasons for his decision were inadequate.
[1]Humphries v. Poljak [1992] V.R. 129.
In determining the application the judge had before him the sworn evidence of the respondent and affidavits exhibiting opinions by medical practitioners who had examined the respondent. Furthermore, the appellants' solicitors put before the Court documents relating to a previous "serious injury" application made by the respondent arising out of a transport accident which had occurred in 1990,…
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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AGLC
Nichols v Robinson [2001] VSCA 11
Case
[2001] VSCA 11
Decision Date
CaseChat Overview and Summary
The appellant, Nichols, has brought an appeal against a decision of the respondent, Robinson, who is a judge of the Supreme Court. The appeal concerns the respondent’s decision to grant leave to bring proceedings under section 93 of the Transport Accident Act 1986. The issue at the heart of this appeal is whether the judge applied the correct legal test in determining whether the appellant's injury was "serious" as required by section 93(17) of the Act. Additionally, the appellant challenges the adequacy of the reasons provided by the judge for his determination.
The court examined whether the judge correctly applied the statutory test to assess the seriousness of the appellant's injury and whether the reasons given were sufficient to justify the decision. The respondent argued that the judge's assessment was in accordance with the statutory requirements and that the reasons provided were adequate. The court considered the statutory framework and the relevant case law to determine if the judge fulfilled his obligations under section 93 of the Act. The court found that the judge did apply the correct test and that the reasons provided were sufficient to support the determination.
Ultimately, the court held that the respondent judge correctly applied the legal test and provided adequate reasons for his decision. The appeal was dismissed, and the decision of the respondent judge to grant leave to bring proceedings was upheld. The court further clarified the appropriate form of order under the Act, ensuring that the order was in the correct format as per the statutory requirements. This case serves as a reminder of the importance of applying the correct legal tests and providing clear, reasoned justifications for judicial decisions.