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Siddel-Whipp v Transport Accident Commission

Siddel-Whipp v Transport Accident Commission

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Case Copied 8 May 2020 41 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0103

KENNETH SIDDEL-WHIPP	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2020
DATE OF JUDGMENT:	8 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 109
JUDGMENT APPEALED FROM:	[2019] VCC 1303 (Judge Misso)

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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Injury to the spine – Whether consequences serious – Whole of the evidence – Applicant’s evidence – Lay evidence – Medical evidence – Whether judge erred in considering evidence – Whether decision refusing application against the evidence or weight of the evidence – Whether judge failed to consider whole of the evidence – Whether reasons adequate – Application for leave to appeal refused – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R H Stanley and Mr O T Lesage	Shine Lawyers
For the Respondent	Mr J Ruskin QC with Ms R L Kaye	Solicitor for the Transport Accident Commission

BEACH JA

EMERTON JA:

Late on the evening of 19 October 2016, the applicant was driving his motor vehicle along Dandenong Road, Malvern,[1] when a fallen overhead tram wire became entangled with one of his wheels, causing him to lose control of his car, which then flipped over (‘the accident’). The following morning, he became aware of pain and stiffness in his neck and lower back, and the onset of a headache.
[1]Near where Dandenong Road intersects with Glenferrie Road.

By an originating motion filed in the County Court on 23 January 2019, 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 in respect of the injury he claimed to have sustained in the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon was the function of the spine.

The application was heard in the County Court by Judge Misso on 5 and 6 August 2019. On 23 August, the judge dismissed the application. While the judge accepted that the applicant had suffered an injury to his spine which was productive of pain and other consequences,[2] his Honour concluded that the evidence did not justify a finding that the consequences of the applicant’s impairment were serious within the meaning of the Act.[3]
[2]Siddel-Whipp v Transport Accident Commission [2019] VCC 1303, [63] (‘Reasons’).
[3]Ibid [68].

The applicant now seeks leave to appeal against the order refusing his application, on the following proposed grounds:

When finding that the applicant did not suffer a serious injury, his Honour erred by:
(i)failing to make correct findings about some of the applicant’s evidence;

(ii)       failing to correctly apply the evidence to the test for serious injury;
(iii)      failing to deal appropriately with the lay evidence;
(iv)     failing…

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: [2020] VSCA 109
Decision Date: 8 May 2020

CaseChat Overview and Summary

Siddel-Whipp sought review of a decision denying her application for serious injury compensation under the Transport Accident Act 1986. The dispute before the court was whether the trial judge erred in his assessment of the evidence and whether the consequences of her spinal injury were serious enough to warrant compensation. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues centred around whether the trial judge erred in considering the evidence presented, whether the decision to refuse the application was against the evidence or the weight of the evidence, and whether the judge had failed to consider the entirety of the evidence. Additionally, the adequacy of the reasons provided by the judge for his decision was examined.

The Court of Appeal held that the trial judge did not err in his assessment of the evidence and that the decision was not against the evidence or the weight of the evidence. The judge had considered all the evidence, including the applicant's testimony, lay evidence, and medical evidence, and had adequately reasoned his decision. Therefore, the appeal was dismissed and leave to appeal was refused.

The court's final order was that the application for leave to appeal was refused, and the original decision denying the application for serious injury compensation was upheld.

Orders