Randhawa v Transport Accident Commission - [2021] VSCA 135

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…

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: [2021] VSCA 135
Decision Date: 17 May 2021

CaseChat Overview and Summary

The case before the court involved the applicant, Randhawa, who sought leave to appeal a decision by a judge of the Supreme Court. The applicant had sustained a serious injury in a transport accident and was seeking compensation under the Transport Accident Act 1986. The specific dispute centred around the assessment of the severity of the applicant's spinal injury and the appropriate common law remedy. The application was brought before the Court of Appeal, which was tasked with determining whether the primary judge had erred in his assessment of the injury and the subsequent decision to deny leave to appeal.

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.

Orders