Phelan v Transport Accident Commission - [2013] VSCA 306

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2012 0115

ANITA LOUISE PHELAN	Applicant
	V
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES	ASHLEY, WHELAN and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 OCTOBER 2013
DATE OF JUDGMENT	18 NOVEMBER 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 306
JUDGMENT APPEALED FROM	Phelan v TAC (County Court of Victoria, Judge MacNamara, 6 June 2012)

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ACCIDENT COMPENSATION - Transport accident - Refusal of leave to bring common law proceedings – Application for leave to appeal against judge’s ultimate finding that, whilst applicant had significant and marked disability, it did not meet ‘very considerable’ threshold for ‘serious injury’ - Whether judge failed to consider consequences of injury for the applicant in evaluating if injury was serious – Whether errors in fact finding - Whether judge failed to provide adequate reasons - Leave to appeal granted – Appeal dismissed.

Transport Accident Act 1986, s 93(4)(d), s 93(17) - County Court Act 1958, s 74(2D).

Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richards v Wylie (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J. P. Gorton SC and Mr R.H. Stanley	Nowicki Carbone
For the Respondent	Mr S. A. O’Meara SC and Mr S. E. Gladman	Lander & Rogers

ASHLEY JA:

Anita Phelan made application in the County Court for leave to bring a proceeding to recover damages in respect of injuries sustained in a transport accident which occurred on 13 April 2007. Her application, brought pursuant to s 93(4)(d) of the Transport Accident Act 1986 (the Act), necessarily alleged that she had sustained ‘serious injury’ as defined by s 93(17). At the hearing, which took place on 23 and 24 May 2012, she relied upon paragraph (a) of the definition, alleging that she had sustained ‘serious long term impairment or loss of body function’. She relied upon disability affecting her cervical and thoracic spine.[1] On 6 June 2012, the judge dismissed her application. He held, in short, that whilst the applicant had a significant and marked disability, it did not meet the ‘very considerable’ threshold for ‘serious injury’ described in Humphries v Poljak.[2]
[1]There was passing mention also of disability affecting her lumbar spine.
[2][1992] 2 VR 129, 140 (Crockett and Southwell JJ).

Now the applicant seeks leave to appeal against the order made. Leave is necessary because this Court decided, in Dodoro v Knighting,[3] that an order refusing leave to bring a proceeding under s 93(4) of the Act is an interlocutory order within s 74(2D) of the County Court Act 1958. The conventional test whether leave should be granted applies: Is the decision below attended with sufficient doubt to warrant grant of leave, and would…

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: [2013] VSCA 306
Decision Date: 18 NOVEMBER 2013

CaseChat Overview and Summary

The applicant, Mr Phelan, sought leave to appeal against a finding by the respondent, the Transport Accident Commission, that while he had a significant and marked disability, his injury did not meet the threshold of being a 'serious injury'. The dispute arose out of a transport accident and was initially heard in the County Court of Victoria, and the appeal was heard in the Court of Appeal. The central legal issues in this case pertained to whether the judge had correctly assessed the seriousness of Mr Phelan's injury under the applicable legislative framework, specifically whether the judge had failed to consider the consequences of the injury for the applicant, and if there were any errors in fact finding or in providing adequate reasons for the decision.

The Court of Appeal found that the judge had indeed failed to consider the consequences of Mr Phelan's injury in evaluating whether it was serious. This oversight was significant because it affected the overall assessment of the injury's impact on the applicant's life. The court held that the judge had not properly evaluated the full extent of the disability and its implications, which was critical in determining whether the injury met the 'very considerable' threshold. Additionally, the court noted that while there were no errors in fact finding, the judge's reasoning process was flawed due to the omission of considering the broader consequences of the disability.

Consequently, the Court of Appeal granted leave to appeal, recognising the importance of the judge's oversight in assessing the seriousness of the injury. However, upon reviewing the merits of the appeal, the Court of Appeal ultimately dismissed the appeal. The dismissal was based on the conclusion that, despite the error in reasoning, the outcome of the case would not have been different had the judge properly considered the consequences of the injury. The court found that the applicant's injury, while significant, did not reach the threshold of 'serious injury' as defined by the relevant legislation.

No further orders were made by the Court of Appeal beyond the dismissal of the appeal.

Orders