Palmer v Transport Accident Commission - [2024] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0029

JANET PALMER	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	NIALL, WALKER and MACAULAY JJA
WHERE HELD:	Geelong
DATE OF HEARING:	27 August 2024
DATE OF JUDGMENT:	30 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 254
JUDGMENT APPEALED FROM:	Palmer v TAC [2024] VCC 43 (Judge Tsikaris)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Neck injury – Pre-existing shoulder injury – Whether judge erred in concluding that applicant had not suffered serious injury – No error in judge’s approach or conclusion – Whether judge erred in considering evidence regarding pecuniary disadvantage and employment limitations – No error established – Whether judge’s reasons sufficiently disclosed path of reasoning – Judge’s reasons adequate – Leave to appeal refused.

Transport Accident Act 1986, s 93.

Connelly v Transport Accident Commission (2024) 73 VR 257; Humphries v Poljak [1992] 2 VR 129; Hunter v Transport Accident Commission [2005] VSCA 1; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Transport Accident Commission v Zepic (2013) 65 MVR 32; Warren v Coombes (1979) 142 CLR 531, applied – Dressing v Porter [2006] VSCA 215, considered.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr P Haddad
Respondent:		Mr J Ruskin KC with Mr D Oldfield
Solicitors
Applicant:	Nevin Lenne & Gross Solicitors
Respondent:	Solicitor to the Transport Accident Commission

NIALL JA
WALKER JA
MACAULAY JA:

Introduction

In January 2017, the applicant was involved in a transport accident which resulted in injury to her neck. In April 2016, around nine months earlier, the applicant had injured her left shoulder through an injury sustained in the course of her employment.
On 2 September 2021, the applicant sought leave by originating motion pursuant to s 93(4)(d) of the Transport Accident Act 1986 to bring proceedings for the recovery of damages for the injury alleged to have been sustained in the transport accident. In order to obtain that grant of leave, the applicant was required to establish that she had suffered a ‘serious injury’ within the meaning of s 93(4)(d) of the Act.
A judge of the County Court dismissed the proceeding, finding that, while the applicant had suffered a spinal injury, the applicant had not ‘disentangled’ the consequences of that compensable injury from those resulting from her earlier workplace injury. Further, the judge found that the pain and suffering and the pecuniary consequences of her injuries as a result of the transport accident were not ‘very considerable’ and ‘more than significant or marked’.[1]
[1]Humphries v Poljak [1992] 2 VR 129, 140 (Crockett and Southwell JJ) (‘Humphries’).
The applicant now seeks leave to appeal the judge’s decision on three proposed grounds:
1 The trial judge erred in the application of Humphries v Poljak [1992] 2 VR 129, 140 to the whole of the evidence adduced at trial, and ought to have determined that the…

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: [2024] VSCA 254
Decision Date: 30 October 2024

CaseChat Overview and Summary

The case of Palmer v Transport Accident Commission was heard in the Court of Appeal of Victoria. The applicant, Palmer, sought leave to appeal against a decision of the County Court, which had dismissed his application for leave to commence common law proceedings against the Transport Accident Commission. The dispute centred on the classification of Palmer's injuries and his eligibility to pursue common law damages, following a transport accident. Palmer claimed that he had suffered a serious injury, warranting the initiation of common law proceedings, while the Transport Accident Commission argued otherwise.

The central legal issues in this case were whether the County Court judge had erred in determining that Palmer had not suffered a serious injury, in considering evidence related to pecuniary disadvantage and employment limitations, and whether the judge's reasons adequately disclosed the path of reasoning. The Court of Appeal was tasked with examining these issues to determine if the appeal should proceed.

In its decision, the Court of Appeal found no error in the County Court judge's approach or conclusion. The Court held that the judge's assessment of the evidence and application of relevant legal principles was sound, and there was no basis to conclude that the judge had erred in considering the evidence of pecuniary disadvantage and employment limitations. Furthermore, the Court determined that the judge's reasons were sufficient to demonstrate the reasoning process. Consequently, the Court of Appeal refused Palmer leave to appeal.

No further orders were made by the Court of Appeal.

Orders