Saad v Transport Accident Commission - [2002] VSC 533

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5710 of 2002

NIRVANA SAAD	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2002
DATE OF JUDGMENT:	3 December 2002
CASE MAY BE CITED AS:	Saad v TAC
MEDIUM NEUTRAL CITATION:	[2002] VSC 533

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ACCIDENT COMPENSATION – appeal from the Victorian Civil and Administrative Tribunal – whether the appellant’s injuries were caused by a transport accident – the finding was open to the Tribunal on the evidence

Berlyn v Brouskos [2002] VSC 377
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Nash QC with Mr L Paine	Macpherson & Kelley
For the Respondent	Mr B Griffin	TAC Law Pty Ltd

HER HONOUR:

This is an appeal on a question of law pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”) against a decision made on 10 April 2002 by the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by Senior Member Megay. Leave to appeal from the decision of the Tribunal was given by Master Evans on 12 June 2002. The only description before the Court of the decision of the Tribunal or of the determination reviewed by the Tribunal appears in the Notice of Appeal as (omitting the errors in the descriptions of the Act and of the Tribunal):

the decision . . . whereby the Tribunal dismissed the Appellant’s application for review of the Transport Accident Commissions [sic] determination that the Appellant had recovered from the effects of any injuries sustained in a transport accident by 30^th April 2001 and a consequent decision to cease payment of all benefits to the appellant from 30^th May 2001, and ordered each party bear their own costs.

No formal copy of the decision of the Tribunal or of the determination reviewed by the Tribunal was in the materials before the Court.

The question of law raised on the appeal is expressed as follows in the Notice of Appeal:

Did the Tribunal make an error of law in that it made a finding of fact namely:
“The fact that Mr Fabinyi’s opinion of causation at no stage advanced beyond a possibility is in my view fatal to Mrs Saad’s case”

when there was not evidence to support such finding.
As a consequence of such error the Tribunal misapprehended the weight of the evidence given by Mr Gavin Fabinyi.

The ground of appeal is expressed as follows in the Notice of Appeal:
This appeal is brought on the following grounds [sic]:
(a) That there was no evidence to support the said finding of fact.

In 1994 Mr Fabinyi, a specialist neurosurgeon, operated on the appellant for a L4/5 disc prolapse. He performed a laminectomy and discectomy from which she had a slow but steady recovery.

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: [2002] VSC 533
Decision Date: 3 December 2002

CaseChat Overview and Summary

In the case of Saad v Transport Accident Commission, the appellant, Saad, sought review of a decision by the Victorian Civil and Administrative Tribunal, which had rejected his claim for accident compensation from the respondent, the Transport Accident Commission. Saad argued that the Tribunal erred in concluding that his injuries were not caused by a transport accident, as he had alleged. The Court of Appeal was called upon to determine the correctness of the Tribunal’s decision regarding causation of the injuries.

The primary legal issue before the court was whether the Tribunal's finding on the cause of Saad’s injuries was open to it, given the evidence presented. This involved assessing whether the Tribunal appropriately considered the evidence and applied the relevant legal principles in determining causation. The court had to examine if there was any error in the Tribunal's application of the relevant legal standards or if the findings were supported by the evidence.

The Court of Appeal found that the Tribunal's determination was open to it based on the evidence. The court noted that in cases of factual findings, such as causation, the Tribunal’s decision would be upheld unless it was palpably wrong or there was a failure to take into account relevant considerations. In this instance, the court found no such errors. It held that the Tribunal had carefully considered the medical evidence and other relevant factors, and thus, the Tribunal's conclusion was not erroneous. The appeal was therefore dismissed.

The final orders of the Court of Appeal were that Saad’s appeal against the decision of the Victorian Civil and Administrative Tribunal be dismissed, and that the Tribunal’s decision be upheld. The court found no basis to interfere with the Tribunal’s determination regarding the causation of Saad’s injuries.

Orders