SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0064
| SONIA RANDHAWA | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH, KAYE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 May 2021 |
| DATE OF JUDGMENT: | 17 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 135 |
| JUDGMENT APPEALED FROM: | [2020] VCC 780 (Judge Kings) |
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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of function of spine – Whether judge misapplied Humphries v Poljak [1992] 2 VR 129 – Whether judge misapplied Richards v Wylie (2000) 1 VR 79 – Whether judge erred in not accepting that consequence of applicant’s spinal injury was at least ‘very considerable’ – Whether any inadequacy in judge’s reasons – Whether judge erred in describing applicant’s submission as ‘speculative’ – Whether judge wrongly drew Jones v Dunkel (1959) 101 CLR 298 inference – Proposed appeal having no real prospect of success – Application for leave to appeal refused – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr G A Worth | Slater & Gordon Ltd Lawyers |
| For the Respondent | Mr J Ruskin QC with Ms M Norton | Solicitor for the Transport Accident Commission |
BEACH JA
KAYE JA
OSBORN JA:
On 20 February 2013, the applicant was riding her bicycle at the intersection of St Georges Road and Oakover Road, Preston, when she was struck by a motor vehicle (‘the accident’). She was taken by ambulance to the Royal Melbourne Hospital, where she was admitted and underwent radiological investigations which revealed fractures in her spine.
By an originating motion filed in the County Court on 7 June 2019, 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 in respect of the injuries she sustained as a result of the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’.[1] The body function relied upon was the function of the spine.
[1]Prior to the hearing of the application, the applicant abandoned reliance upon paragraph (c) in respect of what she had previously particularised as a ‘severe long-term mental or severe long-term behavioural disturbance or disorder, involving a panic disorder with secondary agoraphobic features and with features of traumatisation’.
The application was heard in the County Court by Judge Kings on 11 and 12 May 2020. On 9 June 2020, her Honour dismissed the application. While the judge accepted that the applicant had suffered an injury to her spine, she was not satisfied that the consequences of the applicant’s injury could fairly be described as being ‘more than significant or marked’, and as being ‘at least very considerable’.[2]
[2]Randhawa v Transport Accident Commission [2020] VCC 780, [102] (‘Reasons’).
The applicant now seeks leave to…
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- Case
- [2021] VSCA 135
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to address included whether the primary judge had misapplied the principles established in Humphries v Poljak and Richards v Wylie when evaluating the severity of the applicant's injury. Additionally, the court had to consider whether the primary judge had erred in his characterisation of the applicant's submissions as speculative and whether he had correctly assessed the adequacy of the reasons provided. The applicant argued that the consequences of their spinal injury were at least'very considerable,' which would warrant a different outcome in the application for leave to appeal.
In delivering the judgment, the court held that the primary judge had not misapplied the cited authorities, nor had he erred in his characterisation of the applicant's submissions. The court found that the primary judge had appropriately assessed the evidence and the severity of the injury, concluding that the proposed appeal had no real prospect of success. The reasoning provided by the primary judge was deemed adequate, and the court did not find any inadequacy in his approach. Consequently, the application for leave to appeal was refused.
The court's final orders were that the applicant's application for leave to appeal was dismissed, and no further appeal would be permitted based on the findings and reasoning provided in the judgment.
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Evidence
Evidence Before The Court
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Decision
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