Seckold v Transport Accident Commission - [2025] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0052

ADRIAN SECKOLD	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	BEACH JA, FORBES and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2025
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 18
JUDGMENT APPEALED FROM:	[2024] VCC 343 (Judge Tran)

---

ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of right wrist – Aggravation of pre-existing degenerative changes – Whether judge erred in concluding that applicant had failed to establish extent of aggravation of degenerative changes – Whether judge erred in concluding that applicant had not established that consequences of injury were long-term – Whether judge erred in failing to conclude that consequences of injury were very considerable – No error made by primary judge – Application for leave to appeal refused.

Transport Accident Act 1986, s 93(4)(d).

Humphries v Poljak [1992] 2 VR 129, Petkovski v Galletti [1994] 1 VR 436, applied.

---

Counsel
Applicant:		Ms FAL Ryan SC with Mr J Valiotis
Respondent:		Ms RL Kaye KC with Mr R Kumar
Solicitors
Applicant:	Zaparas Lawyers
Respondent:	Hall & Wilcox

BEACH JA
FORBES AJA
J FORREST AJA:

On 4 May 2016, the applicant was riding a motorcycle when it collided with a motor vehicle (‘the accident’). Following the accident, the applicant was taken to the Austin Hospital. He was admitted to the hospital and remained there until being discharged on 7 May 2016. During the course of his admission, he underwent a number of diagnostic scanning procedures involving his head, neck, back, chest, abdomen, pelvis and legs.
By an originating motion filed in the County Court on 29 May 2023, 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 the injuries he received as a result of the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’).
The application was heard in the County Court by her Honour Judge Tran on 5 March 2024. The body function relied upon by the applicant was the function of his right wrist. The issues in dispute before the judge were:
(a)whether the applicant suffered an impairment of his right wrist as a result of the accident;
(b)whether the claimed impairment was serious, in the sense that its consequences could fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’;[1] and
(c)whether the impairment was long-term.
[1]See Humphries v Poljak [1992] 2 VR 129, 140.
On 18 April 2024, the judge dismissed the applicant’s proceeding and ordered him to pay the respondent’s costs.[2] While the judge concluded that the applicant suffered an impairment to his right wrist as a result of the accident, in the form of an aggravation…

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.

Keep reading for free

Create a free CaseChat account to read Seckold v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSCA 18
Decision Date: 28 February 2025

CaseChat Overview and Summary

The applicant, Seckold, sought leave to appeal a decision of the County Court regarding an application for leave to commence a common law proceeding. The application related to a transport accident that resulted in a serious injury to Seckold's right wrist. The Transport Accident Commission contested the application, arguing that Seckold had not established the extent of the aggravation of the pre-existing degenerative changes in his wrist, that the consequences of the injury were not long-term, and that the consequences were not very considerable. The case was heard in the Court of Appeal, with the primary judge's decision being the subject of the appeal.

The legal issues that the court had to address included whether the primary judge erred in concluding that Seckold had failed to establish the extent of the aggravation of degenerative changes, whether the primary judge was correct in finding that Seckold had not established that the consequences of the injury were long-term, and whether the primary judge was wrong in not concluding that the consequences of the injury were very considerable. The court needed to consider the evidence provided by both parties, and the relevant provisions of the Transport Accident Act 1986.

The court found that there was no error made by the primary judge in concluding that Seckold had not established the extent of the aggravation of degenerative changes, that the consequences of the injury were not long-term, or that the consequences were not very considerable. The court considered the evidence presented and concluded that the primary judge's findings were consistent with the evidence and the applicable legal principles. The court found that the primary judge had correctly applied the relevant authorities, including Humphries v Poljak and Petkovski v Galletti. The court rejected Seckold's application for leave to appeal, and no further orders were made.

Orders