Principe v Transport Accident Commission - [2016] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0033

SALVATORE PRINCIPE	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	HANSEN and BEACH JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2016
DATE OF JUDGMENT:	26 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 205
JUDGMENT APPEALED FROM::	Principe v Transport Accident Commission (Unreported, County Court of Victoria, Judge Macnamara, 2 March 2016)

---

ACCIDENT COMPENSATION – Transport accident – Low back injury – Causation – Whether transport accident was a cause of low back injury – Application conducted on basis that if causation established, then applicant’s low back condition constituted serious injury within meaning of s 93 of Transport Accident Act 1986 – Judge concluded that causation not established – Failure to deal appropriately with lay evidence and evidence of medical witnesses whose opinions favoured applicant’s claim – Causation established – Application for leave to appeal granted – Appeal allowed – Applicant granted leave to commence proceeding – Transport Accident Act 1986, s 93.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D F Hore-Lacey SC with Mr C E Hangay	Shine Lawyers
For the Respondent	Mr J Ruskin QC with Mr S D Martin	Solicitor to the Transport Accident Commission

HANSEN JA

BEACH JA
CAVANOUGH AJA:

Introduction

On 22 July 2009, the applicant (Mr Salvatore Principe) was involved in a motor vehicle accident when the parked car he was sitting in was hit from behind by another vehicle. Following the collision, the applicant was taken by ambulance to the Maroondah Hospital.

By an originating motion filed in the County Court on 5 June 2014, 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 the injuries he alleged he sustained as a result of the collision. The application was heard over four days between 17 and 22 February 2016. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long term impairment or loss of a body function’. The body function relied upon by the applicant was the function of the low back.

At the hearing, there was no issue between the parties that the applicant was suffering from a low back condition. Further, in final address, the respondent conceded that the applicant’s back condition was serious. The issue between the parties then became whether the collision was a cause of this admitted serious injury. Thus, at the time of final address, it was accepted by the respondent that, if causation was made out, then the applicant’s back condition constituted a ‘serious injury’ within the meaning of the Act.

On 2 March 2016, the judge dismissed the applicant’s application.[1] The applicant seeks leave to appeal. The matter has been dealt with on the basis that, if leave to appeal is granted, the appeal would be treated as having been heard instanter

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.

Keep reading for free

Create a free CaseChat account to read Principe v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 205
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the matter of Principe versus the Transport Accident Commission, the applicant sought compensation for a low back injury sustained in a transport accident. The case was heard in the Supreme Court of Victoria. The applicant argued that the accident caused or contributed to his low back injury, and if causation was established, then the injury constituted a serious injury under the Transport Accident Act 1986.

The court was required to determine whether the applicant's low back injury was caused or contributed to by the transport accident. The applicant argued that the accident caused or contributed to his low back injury, and if causation was established, then the injury constituted a serious injury under the Transport Accident Act 1986. The judge concluded that causation was not established, but the Court of Appeal found that the judge failed to deal appropriately with lay evidence and evidence of medical witnesses whose opinions favoured the applicant's claim.

On appeal, the Court of Appeal found that the applicant's low back injury was caused or contributed to by the transport accident. The Court of Appeal found that the judge failed to deal appropriately with lay evidence and evidence of medical witnesses whose opinions favoured the applicant's claim. The Court of Appeal concluded that causation was established, and allowed the appeal. The Court of Appeal granted the applicant leave to appeal and to commence a proceeding.

Orders