Rowe v Transport Accident Commission

[2017] VSCA 377

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0100

ANTHONY ROWE	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2017
DATE OF JUDGMENT:	18 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 377
JUDGMENT APPEALED FROM:	Rowe v Transport Accident Commission (Unreported, County Court of Victoria, Judge Wischusen, 3 August 2017)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Psychiatric injury – Applicant suffered a severe long-term mental disorder – Whether applicant suffered severe long-term mental or severe long-term behavioural disturbance or disorder as a result of transport accident – Causation – Test to be applied – Other traumas suffered by applicant – Judge not satisfied that applicant suffered serious injury as a result of transport accident – Whether judge applied incorrect test – Whether judge failed to consider evidence – Whether judge’s conclusion against the weight of the evidence – Whether judge’s reasons inadequate – No error made by judge – Judge’s conclusion not against weight of evidence – No inadequacy in judge’s reasons – No real prospect of success in proposed appeal – Application for leave to appeal refused – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T P Tobin SC with Mr A Saunders	Maurice Blackburn Lawyers
For the Respondent	Mr S A O’Meara QC with Ms F C Spencer	Solicitor to the Transport Accident Commission

OSBORN JA

PRIEST JA
BEACH JA:

1. On 15 November 2007, the applicant was the driver of a truck involved in a collision (‘the 2007 collision’) with a Victoria Police divisional van.  The collision occurred on the Maroondah Highway near Healesville when the divisional van, which was travelling in the opposite direction from the applicant, drifted into the applicant’s lane.  The applicant did not suffer any physical injury.  The police van was extensively damaged and both its driver and passenger were trapped in their vehicle for some time.

1. By an originating motion filed in the County Court on 10 October 2014, 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 for personal injury allegedly sustained as a result of the 2007 collision. The claim was made relying upon paragraph (cof the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.

1. The application for leave to commence a proceeding was heard by Judge Wischusen over three days in June 2017.  On 3 August 2017, the judge dismissed the applicant’s application.

1. While the judge accepted that the applicant suffered from a psychiatric condition, which the judge described as ‘post-traumatic stress disorder and an adjustment disorder and major depression and alcohol abuse’, and that the psychiatric condition was ‘severe in the required sense’,[1] the judge found that the 2007 collision played ‘but a relatively minor role’ in the applicant’s psychiatric condition.[2]…