TAC v Weigert - [2010] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 04105 of 2010

TRANSPORT ACCIDENT COMMISSION	Appellant
v
KENNETH WEIGERT	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2010
DATE OF JUDGMENT:	5 November 2010
CASE MAY BE CITED AS:	TAC v Weigert
MEDIUM NEUTRAL CITATION:	[2010] VSC 20

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ACCIDENT COMPENSATION – Appeal from VCAT – Transport accident – Determination of level of impairment – AMA Guides to the Evaluation of Permanent Impairment (4^th ed) – Multiple impairments – Transport Accident Act 1986, ss 46A and 46C.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Masel with Mr MF Fleming	Solicitor to the Transport Accident Commission
For the Respondent	Mr AJ Keogh SC with Mr J Valiotis	Arnold Thomas & Becker

HIS HONOUR:

Introduction

On 2 March 2007, Mr Kenneth Weigert, the respondent, was injured in a transport accident. On 9 February 2009 the Transport Accident Commission (“the Commission”), the appellant, determined the respondent’s degree of impairment pursuant to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (4^th ed) (“the AMA Guides”) at 7%.[1]
[1]See ss 46A(1) and (7) of the Transport Accident Act 1986.

On 21 September 2009, the respondent applied for a review at VCAT of the Commission’s determination of his impairment. The application for review came on for hearing before Deputy President Macnamara on 1 July 2010.

At the hearing of the application for review, the parties agreed that the respondent had a 5% whole person impairment by reason of injuries to his cervical spine, a 3% whole person impairment due to injuries to his left shoulder, a 2% whole person impairment due to neurological injury, a 2% whole person impairment due to primary psychiatric impairment in accordance with s 46B of the Transport Accident Act 1986 (“the Act”) and a 1% whole person impairment for scarring. What divided the parties at VCAT (and still divides the parties) is what collective whole person impairment these agreed figures yield. According to the Commission, the figure should be 12%. According to Mr Weigert, the figure should be 13%. After hearing argument, Deputy President Macnamara determined that the figure should be 13% and an order was made that the Commission’s determination be varied “such that [Mr Weigert] suffers a whole person impairment of 13% as a result of the transport accident on 2 March 2007”.

On 19 August 2010, Mahony AsJ gave leave, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, to the Commission to appeal, on questions of law, from the decision of Deputy President Macnamara. On 19 August 2010, the Commission commenced this appeal pursuant to the leave granted by Mahony AsJ. The appeal concerns the proper construction of ss 46A and 46C of the Act and the AMA Guides. Central to the resolution of this appeal is the proper construction and operation of the AMA Guides and, in particular,…

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.

Continue reading TAC v Weigert

Details

AGLC: TAC v Weigert [2010] VSC 20
Case: [2010] VSC 20
Decision Date: 5 November 2010

CaseChat Overview and Summary

The Transport Accident Commission (TAC) appealed a decision by VCAT in the matter of a claim for compensation following a motor vehicle accident. The appellant, Ms Weigert, was involved in a car accident and subsequently suffered from various physical and psychological injuries. The primary dispute concerned the level of permanent impairment resulting from these injuries and the appropriate compensation for them.

The central legal issue was the correct method for assessing the level of impairment in cases where a person suffers from multiple impairments. The dispute centred on the interpretation and application of the AMA Guides to the Evaluation of Permanent Impairment (4th ed) in relation to multiple impairments, as well as the relevant provisions of the Transport Accident Act 1986. Specifically, the court had to determine whether the total impairment percentage was correctly calculated by VCAT when considering the combined effect of multiple impairments.

The Court found that VCAT had erred in its approach to assessing the total impairment percentage. The Court held that the correct approach required an assessment of the overall effect of multiple impairments, rather than a simple aggregation of individual impairments. The Court concluded that VCAT should have applied a more nuanced approach that took into account the interaction between the various impairments when determining the overall impairment percentage. Consequently, the Court allowed the appeal, set aside the VCAT decision, and remitted the matter to VCAT for reconsideration in light of the Court's reasoning.

The Court did not make any final orders but directed that the matter be remitted to VCAT for a fresh determination in accordance with the Court's decision.

Orders