| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0052 |
| ADRIAN SECKOLD | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| 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) |
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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.
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| 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 | ||
d
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…
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- Case
- [2025] VSCA 18
- Decision Date
CaseChat Overview and Summary
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.
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