Richards v Wylie

Case [2000] VSCA 50


SUPREME COURT OF VICTORIA

  COURT OF APPEAL Not Restricted

No. 7279 of 1998

ANITA RICHARDS and
TRANSPORT ACCIDENT COMMISSION
Appellants
v
COLIN JOHN WYLIE
Respondent

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JUDGES:

WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.

WHERE HELD:

MELBOURNE

DATES OF HEARING:

16 and 17 February 2000

DATE OF JUDGMENT:

19 April 2000

MEDIUM NEUTRAL CITATION:

[2000] VSCA 50

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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.:

  1. 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.”

  1. 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.

  1. 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)…

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Richards v Wylie [2000] VSCA 50
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[2000] VSCA 50
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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.

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Background to the litigation

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