Accident compensation – Whether injury “serious” within meaning of s.93(17)(a) of Transport Accident Act 1986 – Trial judge erring in considering evidence of mental disturbance or disorder relevant to long term impairment of body function – s.93(17) intending to maintain distinction between injuries with physical consequences and those with mental consequences – Humphries v. Poljak [1992] 2 V.R. 129.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr. R.P. Gorton Q.C., Mr. W.R. Middleton and Mr. P.H. Solomon
TAC Law Pty. Ltd.
For the Respondent
Mr. H. Fox Q.C. and Mr. C. Nettlefold
Ryan Carlisle Thomas
WINNEKE, P.:
Pursuant to leave granted by this Court on 16 October 1998 the appellants, Anita Richards and Transport Accident Commission (“T.A.C.”) appeal against a decision made by a County Court judge on 9 September 1998 granting leave to the respondent, Colin John Wylie, to commence common law proceedings for damages against the firstnamed appellant pursuant to s.93(4)(d) and (6) of the Transport Accident Act 1986 (“the Act”) in respect of an injury suffered by the respondent in a transport accident occurring on 4 March 1995. Such leave was granted upon the judge being satisfied that the injury suffered by the respondent was a “serious injury” within the meaning of sub-s.(17)(a) of s.93 of the Act. That sub-section defines “serious injury” as meaning:-
“(a) serious long term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long term mental or severe long term behavioural disturbance or disorder; or
(d)loss of a foetus.”
In the proceedings before his Honour, which were conducted on 7 and 8 September 1998, the respondent claimed to have suffered a “serious injury” within the meaning of sub-paragraph (a) and/or sub-paragraph (c) of the sub-section. His Honour found that the respondent had suffered a “serious injury” within the meaning of sub-s.(17)(a) but had not suffered a serious injury within the meaning of sub-s.(17)(c). Upon this appeal the appellants, pursuant to a notice of appeal which was amended on the day of the hearing, contend that his Honour’s decision is vitiated by specific error and/or is plainly wrong (cf. Mobilio v. Balliotis [1]).
[1] [1998] 3 V.R.833.
The transport accident giving rise to the respondent’s injuries, occurred when a car which he was driving came into collision with another vehicle at an intersection. The respondent claimed to have suffered a “whip-lash type” injury to his neck. His application for leave to bring the proceedings was made after the T.A.C. had unfavourably assessed his degree of impairment pursuant to sub-ss. (3) and (4) of s.93 of the Act. Upon the hearing of the application the respondent and his general practitioner (Dr. Christian)…
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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AGLC
Richards v Wylie [2000] VSCA 50
Case
[2000] VSCA 50
Decision Date
CaseChat Overview and Summary
The case of Richards v Wylie involved a dispute regarding the classification of an injury under section 93(17)(a) of the Transport Accident Act 1986. The plaintiff, Mr Richards, sought to have his injury classified as "serious" for the purposes of claiming compensation. The defendant, Mr Wylie, contested the classification, arguing that the injury did not meet the criteria for being considered serious. The matter was brought before the court for determination.
The central legal issue before the court was whether the trial judge had erred in considering evidence of mental disturbance or disorder as relevant to the long term impairment of body function when assessing whether the injury was serious. The court needed to determine whether the trial judge's consideration of such evidence was in line with the statutory definition of a serious injury under section 93(17) of the Act. Specifically, the court had to decide whether the trial judge should have maintained the distinction between injuries with physical consequences and those with mental consequences, as highlighted in Humphries v Poljak [1992] 2 V.R. 129.
The court found that the trial judge had indeed erred in considering the evidence of mental disturbance or disorder as relevant to the long term impairment of body function. The court emphasised that section 93(17) of the Act intended to maintain a distinction between injuries with physical consequences and those with mental consequences. The court held that the trial judge's consideration of the evidence of mental disturbance or disorder was not in accordance with the statutory definition of a serious injury. Consequently, the court ruled that the trial judge's approach was incorrect and that the evidence of mental disturbance or disorder should not have been taken into account when assessing the long term impairment of body function.
The court ordered a re-evaluation of the injury in accordance with the correct legal principles, excluding any consideration of the evidence of mental disturbance or disorder. The case was remitted back to the trial judge for a fresh assessment of the injury under the correct legal framework.