Richards v Transport Accident Commission - [2004] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3773 of 2002

JASON RICHARDS
	Appellant
v.
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	ORMISTON, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2004
DATE OF JUDGMENT:	21 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 91

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Accident compensation – Transport accident – Application for leave to bring proceedings – Serious injury – Sufficiency of reasons for dismissing application – Inadequacy of findings as to nature of injury and its consequences – Transport Accident Act 1986, s93(4), s.93(17).

Evidence – Unrepresented applicant – Attempt to tender affidavits – Judge discouraged tender of relevant evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Appeared in person.
For the Respondent	Mr W.R. Middleton	TAC Law Pty. Ltd.

ORMISTON, J.A.:

The judgment of Eames, J.A. more than adequately demonstrates why this appeal should be allowed and orders made for a rehearing of the proceeding, as he proposes.

BUCHANAN, J.A.:

I have had the advantage of reading the draft reasons prepared by Eames, J.A. I agree with him, for the reasons he has stated, that the appeal should succeed and the proceeding remitted to the County Court.

In my view, inadequacy of the reasons of the judge who heard the application constitutes a basis for the appeal being allowed. While the decision whether the effects of an injury are such as to satisfy the definition of “serious injury” contained in s.93(17) of the Transport Accident Act 1986 is one which “need not be attended by statements of principle, nor does it readily admit of explicit reasoning”[1], the decision-maker is required to at least state what those effects have been found to be.
[1]Nichols v. Robinson [2001] VSCA 11 at [14] per Winneke, P.

The judge below said:

“The circumstances and consequences of such injury either by way of pain and suffering and loss of enjoyment of life or by way of pecuniary disadvantage [were not] such which meet the test which the plaintiff is required to meet …”.

His failure to set out his findings as to those vital circumstances and consequences, in my view, constituted appellable error, for the want of findings has frustrated the ability of this Court to review the decision.[2] The appellant’s description of the consequences of the lumbar injury would appear to amount to a “serious injury”. It is critical to know the extent to which those consequences were found to have been established.

EAMES, J.A.:

[2]Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Harmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154 at 163-4 per Malcolm, C.J.; Stojkovski v. Fitzgerald [1989] W.A.R. 328.

On 25 May 1996 the appellant, who was then 24 years of age, was involved in a motor vehicle accident within fifteen minutes of which he felt pain in his neck of some severity. The appellant was treated at Williamstown Hospital some days after…

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.

Continue reading Richards v Transport Accident Commission

Details

AGLC: Richards v Transport Accident Commission [2004] VSCA 91
Case: [2004] VSCA 91
Decision Date: 21 May 2004

CaseChat Overview and Summary

The matter before the court involved an application for leave to bring proceedings against the Transport Accident Commission (TAC) by a claimant, Richards, who alleged that he suffered a serious injury in a transport accident. The dispute centred on the sufficiency of the reasons provided by the TAC for dismissing his initial application and the adequacy of the findings regarding the nature of his injury and its consequences. The case was heard in the Supreme Court of Victoria.

The central legal issue for the court to resolve was whether the TAC's reasons for dismissing Richards' initial application were adequate under section 93(4) of the Transport Accident Act 1986. Additionally, the court had to determine whether the findings made by the TAC concerning the nature of Richards' injury and its consequences were sufficient under section 93(17) of the same Act. Another pertinent issue was whether the judge's discouragement of the unrepresented applicant's attempt to tender affidavits constituted an error of law.

The court held that the reasons provided by the TAC for dismissing the application were insufficient. It found that the TAC had not adequately addressed the specific criteria outlined in section 93(4) of the Act, leading to an incomplete evaluation of the applicant's claims. Furthermore, the court determined that the findings regarding the nature of the injury and its consequences were also inadequate, as they did not sufficiently consider the evidence presented. The court further noted that the judge's discouragement of the tender of relevant affidavits was problematic, as it deprived the applicant of an opportunity to present his case fully. Consequently, the court granted the application for leave to bring proceedings.

The final orders included permission for the claimant to bring the proceedings against the TAC, with the court directing that the matter proceed to a full hearing to address the merits of the claim.

Orders