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Popal v Transport Accident Commission

Popal v Transport Accident Commission

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Case Copied 15 September 2023 35 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0119

KABIR POPAL	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA, J FORREST and TSALAMANDRIS AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF JUDGMENT:	15 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 222
JUDGMENT APPEALED FROM:	[2022] VCC 1761 (Judge Purcell)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of spine – Applicant’s credit in issue – Whether judge made error of fact – Whether judge’s reasons unreasonable based on the evidence – Leave to appeal refused.

Transport Accident Act 1986, s 93(4)(d).

Fox v Percy (2003) 214 CLR 118, Humphries v Poljak [1992] 2 VR 129, Lee v Lee (2019) 266 CLR 129, Petkovski v Galletti [1994] 1 VR 436, Petrovic v Victorian WorkCover Authority [2018] VSCA 243, Woolworths Ltd v Warfe [2013] VSCA 22 applied.

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Counsel
Applicant:	In person
Respondent:	Mr R Kumar
Solicitors
Applicant:
Respondent:	Lander & Rogers

BEACH JA
J FORREST AJA
TSALAMANDRIS AJA:

On 2 February 2015, the applicant was driving a motor vehicle when a nearby vehicle struck a power pole, causing the pole to fall onto, and crush, the roof of his vehicle (‘the accident’). As a result of the accident, the applicant suffered injury to his lumbar spine.
By an originating motion filed in the County Court on 9 July 2020, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for his injuries received as a result of the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’). The applicant had symptoms in his lumbar spine prior to the accident, and his claimed injury was an aggravation of pre-existing lumbar degenerative disease. The body function relied upon was the function of the spine.
The trial was heard on 17 October 2022 before Judge Purcell. The applicant was represented by counsel at the hearing. On that day, the judge dismissed the applicant’s application and provided oral reasons.[1] In short, the judge held that the applicant failed to establish that the impairment consequences arising from any compensable injury satisfied the requisite test for serious injury. His Honour did so primarily on the bases that the applicant was not a credible witness and that he failed to adduce appropriate evidence from his treating medical practitioners.
[1]Popal v Transport Accident Commission [2022] VCC 1761 (‘Reasons’).
The applicant, who is now self-represented, seeks leave to appeal against the order dismissing his application. If leave is granted, the applicant advances two proposed grounds of appeal. First, that the judge erred in relation to the facts of the application, and second, that the judge’s reasons were unreasonable based on the evidence. The applicant seeks an order that…

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: [2023] VSCA 222
Decision Date: 15 September 2023

CaseChat Overview and Summary

The case of Popal v Transport Accident Commission was heard in the Court of Appeal. The applicant, Popal, sought to commence common law proceedings against the Transport Accident Commission, the respondent. The dispute centred on the applicant’s serious injury claim, specifically in relation to impairment of his spine and his creditworthiness. The Court of Appeal was tasked with determining whether the judge had made an error of fact or if the judge’s reasoning was unreasonable based on the evidence presented.

The legal issues before the Court of Appeal involved the interpretation of the Transport Accident Act 1986, particularly section 93(4)(d), which deals with the criteria for granting leave to appeal. The primary issue was whether the judge had erred in fact or if the judge's reasons for the decision were unreasonable in light of the evidence. The Court needed to assess the applicant's arguments regarding the impairment of his spine and his credit, and whether these were sufficient grounds for leave to appeal to be granted.

In its decision, the Court of Appeal found that there was no error of fact made by the judge and that the judge’s reasons were not unreasonable based on the evidence presented. The Court concluded that the judge had carefully considered the applicant's arguments and the evidence, and had reached a decision that was well within the bounds of reason. As a result, the application for leave to appeal was dismissed.

The Court of Appeal refused the applicant's application for leave to commence common law proceedings against the Transport Accident Commission. The Court found no error of fact or unreasonableness in the judge's decision, and therefore, the applicant's appeal was dismissed.

Orders