Swannell v Farmer

Case [1998] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 7772 of 1996

GLENYS DIANNE SWANNELL and

TRANSPORT ACCIDENT COMMISSION

Appellants

v

BRENDAN WILLIAM FARMER
(as Administrator with the Will Annexed

of the Estate of John Ernest Farmer, deceased)

Respondent

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JUDGES: CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD: WANGARATTA
DATE OF HEARING: 29 April 1998
DATE OF JUDGMENT: 11 November 1998
MEDIA NEUTRAL CITATION: [1998] VSCA 104
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Transport Accident - Death of injured person from other cause before satisfying "gateway" requirements of s.93(3) or (4) - Whether cause of action for damages vested in injured person at death - Application for leave to bring proceedings by personal representative - Whether maintainable - Whether knee injury a serious injury - Whether judge must in reasons spell out comparison with other cases in range - Transport Accident Act 1986, ss.3(5)(c), 93(1)-(6) and (17)(a), and 94(1) and (7).- Administration and Probate Act 1958, s.29(1) and (4).

Survival of cause of action - Transport accident - Death of injured person from other cause before satisfying "gateway" requirements of s.93(3) or (4) - Whether cause of action vested in injured person at death - Administration and Probate Act 1958, s.29(1) and (4) - Transport Accident Act 1986, ss.3(5)(c), 93(1)-(6) and (17)(a), and 94(1) and (7).

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APPEARANCES: Counsel Solicitors
For the Appellants  Mr. A.G. Uren, Q.C. TAC Law Pty. Ltd.
with Mr. P.H. Solomon
For the Respondent  Mr. J.E. Barnard, Q.C. Moores
with Mr. D.G. Brookes

CALLAWAY, J. A.:

  1. I agree with Batt and Buchanan, JJ.A. There is only one point in their Honours' reasons for judgment that I desire to emphasize.

  2. The purpose of the legislation with which this appeal is concerned was to confine relief to persons who have suffered serious injury. They are made to pass through the gateways as a screening mechanism to make sure that they have in truth suffered such an injury. It is inconceivable that Parliament intended that, whilst they are in the process of doing so, they may lose their rights altogether because the tortfeasor dies. For the reasons explained in paragraph 33 of the joint judgment there is a real danger that they may do so. The implication is not that Wilson v. Nattrass (1995) 21 M.V.R. 41 was wrongly decided but rather that consideration should be given to amending s.29 of the Administration and Probate Act 1958. Section 29(4) is of no assistance, because the difficulty does not arise from the order in which damage is suffered and death occurs.

BATT, J.A.:

BUCHANAN, J.A.:

Introduction

  1. This is an appeal, by leave granted by the Court of Appeal on 26 February 1998, by the appellant defendants in proceeding No. 9608745, commenced by originating motion filed on 30 September 1996, from an order of a judge of the County Court at Melbourne made on 29 October 1996 granting the respondent plaintiff, who sued as administrator with the will annexed of the estate of John Ernest Farmer deceased, leave pursuant to s.93(4)(d) of the Transport…

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Swannell v Farmer [1998] VSCA 104
Case
[1998] VSCA 104
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CaseChat Overview and Summary

In the matter of Swannell v Farmer, the appellants, defendants in the original proceeding, appealed against an order of the County Court at Melbourne which granted the respondent plaintiff leave to bring proceedings for the recovery of damages in respect of injuries sustained by the deceased, John Ernest Farmer, as a result of a transport accident. The primary legal issue before the court was whether the deceased had suffered a 'serious injury' within the meaning of s.93(17) of the Transport Accident Act 1986, entitling him to recover damages. The court needed to determine if the injuries suffered by the deceased were sufficiently serious to meet the statutory threshold. The court considered whether the deceased's injuries, particularly to his right leg, resulted in a long-term impairment or loss of a body function and whether these injuries, when compared to other possible impairments or losses, could be described as'very considerable' and more than 'significant' or'marked'. The court also had to assess the impact of the deceased's pre-existing health conditions on his ability to recover damages.

The court reviewed the evidence regarding the deceased's injuries, including the findings and opinions of the orthopaedic surgeons and the lay evidence provided by the respondent and the deceased's brother. The court considered the extent of the injuries to the right leg, the marked stiffness and constant pain, the likelihood of future degenerative changes and the impact on the deceased's mobility, social and recreational activities. The court noted the deceased's pre-existing cardiovascular disease and depression, which also affected his ability to perform various activities. The court concluded that the deceased had suffered a long-term impairment or loss of a body function due to the injuries sustained in the accident. The court found that the deceased's injuries were serious enough to meet the statutory threshold, and therefore granted the respondent leave to bring the action for damages. The court's decision hinged on the severity of the injuries in relation to other possible impairments or losses and the extent to which the injuries impacted the deceased's life.

The final orders of the court were that the appeal be dismissed and that the respondent be granted leave to bring proceedings for the recovery of damages in respect of the injuries sustained by the deceased. The court also ordered that the costs of the appeal be paid by the appellants. The decision underscored the importance of assessing the seriousness of injuries in the context of the statutory definition and the specific circumstances of the case, including any pre-existing conditions that may affect the recovery process.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal, by leave granted by the Court of Appeal on 26 February 1998, by the appellant defendants in proceeding No. 9608745, commenced by originating motion filed on 30 September 1996, from an order of a judge of the County Court at Melbourne made on 29 October 1996 granting the respondent plaintiff, who sued as administrator with the will annexed of the estate of John Ernest Farmer deceased, leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 ("the Act"), scil., to bring proceedings for the recovery of damages in respect of the injury of the deceased as a result of a transport accident. The facts in summary The facts giving rise to the proceeding and this appeal are as follows. On 19 December 1989 John Ernest Farmer ("the deceased") was injured in a transport accident at Frankston when a motor vehicle driven by him came into collision with a motor vehicle driven by the first appellant. As a result of the accident the deceased suffered orthopaedic injuries to his right leg, his right shoulder and his neck. In particular he sustained a compound fracture of the right patella, an osteochrondal fracture of the right femoral condyle, a fracture of the upper right tibia and a tear of the right lateral meniscus. It was also said that he suffered resultant mental and behavioural disturbance or disorder. The deceased, who was born on 24 August 1933, was unemployed at the time of the accident, having ceased work as a boilermaker/welder in May 1989 on the recommendation of his psychiatrist, who considered that he was not coping with stress. He had suffered a myocardial infarction in 1985 and another in 1989. His condition was one of mild effort angina. His cardiovascular condition degenerated from February 1993 and he died on 13 August 1994. The causes of his death were cardiac arrhythmia consequent upon ischaemic heart disease and cardiac failure, according to the death certificate. His death, then, was not related to, or caused by, the transport accident of 1989. Prior to his death, the deceased had been examined by, and reports had been obtained from, various medical practitioners for the purpose of determining a degree of impairment resulting from the injuries sustained in the accident. He had made a claim for compensation under the Act and on 8 January 1992 had been notified that his level of permanent impairment had been assessed at 18 per cent. The appellants accepted that after that the deceased had had further medical examinations with a view to having his impairment level re-assessed for impairment benefits and that the appellant Commission had arranged for him to be re-assessed for impairment and had had him examined by psychiatrists in late 1993 and early 1994, though no further orthopaedic assessment had been arranged by it. The appellants admitted that the Commission had by letter dated 8 February 1994 The injury to the deceased's right leg resulted in marked stiffness and constant pain in his right knee, which became worse in cold weather. The stiffness was a loss of flexion, and there was the possibility of serious degenerative changes in the future and of major further surgery as a consequence. The deceased's mobility was markedly affected by the injury to his right knee. He had an antalgic gait and walked with a limp. He was only able to walk short distances and still required a walking stick. He had difficulty with stairs and inclines and his driving was restricted. His social and recreational activities were also affected by his injuries: he could no longer prune his roses, start a lawn mower or throw a ball, and his fishing activities were diminished, though not terminated. After the accident, the deceased had bought a motor car for his own use. He began light work for his brother in 1992, first in the office, answering the telephone, and then doing light, sedentary, welding. This continued until the very day of his death. There were other factors causing restrictions in the things which the deceased could do, apart from the injuries sustained in the accident. In particular there were his pre-existing cardiovascular disease and a pre-existing depression and anxiety state. The judgment below

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The injury to the deceased's right leg resulted in marked stiffness and constant pain in his right knee, which became worse in cold weather. The stiffness was a loss of flexion, and there was the possibility of serious degenerative changes in the future and of major further surgery as a consequence. The deceased's mobility was markedly affected by the injury to his right knee. He had an antalgic gait and walked with a limp. He was only able to walk short distances and still required a walking stick. He had difficulty with stairs and inclines and his driving was restricted. His social and recreational activities were also affected by his injuries: he could no longer prune his roses, start a lawn mower or throw a ball, and his fishing activities were diminished, though not terminated. After the accident, the deceased had bought a motor car for his own use. He began light work for his brother in 1992, first in the office, answering the telephone, and then doing light, sedentary, welding. This continued until the very day of his death. There were other factors causing restrictions in the things which the deceased could do, apart from the injuries sustained in the accident. In particular there were his pre-existing cardiovascular disease and a pre-existing depression and anxiety state. The judgment below After setting out the nature of the proceeding, the essence of the legislation applicable, and the issues, the County Court judge stated the facts in somewhat more detail than we have done. Noting that the respondent relied on the impairment of function of the right leg, alternatively of the right shoulder, alternatively of the neck in support of his submission that the deceased had suffered long-term impairment or loss of a body function within para.(a) of the definition of "serious injury" in s.93(17) and alternatively contended that the deceased had a long- His Honour then turned to the leg injuries. He reviewed the findings, opinions and prognoses of Mr. Wuttke and Mr. Bergman, orthopaedic surgeons who had examined the deceased on behalf of the deceased and the Commission respectively, as well as the lay evidence, by affidavit and in cross-examination, of the respondent and the brother of the deceased. His Honour quoted from the well known statement of Crockett and Southwell, JJ. in Humphries v. Poljak [1992] 2 V.R. 129 at 140, which has been approved by a five-member division of this Court since his Honour's decision: Mobilio v. Balliotis (unreported, Court of Appeal, 10 November 1997). It is convenient to set out a little more of that passage than his Honour actually set out. Their Honours said at 140-141: "We think 'long-term' is not an expression likely to give rise to difficulty. To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'? Beyond such assistance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of the range of applications ..." His Honour then expressed his opinion by way of conclusion that, having regard to the extent and number of the discrete injuries to the area of the knee, to the opinion of Mr. Wuttke and the gloomy prognosis of Mr. Bergman, taken together with the

Ratio Decidendi

Legal Principle Established

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