Taylor v Transport Accident Commission - [2022] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0135

SKYE TAYLOR	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	T FORREST, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2022
DATE OF JUDGMENT:	9 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 269
JUDGMENT APPEALED FROM:	[2022] VCC 1764 (Judge K L Bourke)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Applicant refused leave to commence common law proceedings – Whether trial judge applied correct test for causation – Whether trial judge ought to have determined accident was a cause of injuries and sequelae – Leave to appeal refused.

Transport Accident Act 1986.

Gennimatas v Transport Accident Commission [2022] VSC 552; Thapa vTransport Accident Commission [2021] VCC 1764; Principe v Transport Accident Commission [2016] VSCA 205 and Petkovski v Galletti [1994] 1 VR 436 referred to.

Counsel
Applicant:		Mr A D B Ingram KC with Mr P A Czarnota
Respondent:		Mr J Ruskin KC with Mr R Kumar
Solicitors
Applicant:	Shine Lawyers
Respondent:	Wisewould Mahoney

T FORREST JA
KENNEDY JA
KAYE JA:

Skye Taylor applies for leave to appeal from a decision of the County Court refusing her application for leave to commence common law proceedings for damages allegedly sustained in a transport accident on 9 June 2011.
The applicant is precluded from instituting common law proceedings for damages in respect of an injury said to be sustained in a transport accident without receiving leave from a court pursuant to s 93(4)(a) of the Transport Accident Act 1986 (‘the Act’). The court must not grant such leave unless it is satisfied the injury is a ‘serious injury’.[1] For the purposes of this application the relevant definition of ‘serious injury’ is ‘serious long-term impairment or loss of a body function.’[2] The body function relied upon was expressed as ‘the spine’.
[1]Section 93(6) of the Act.
[2]Section 93(17)(a).
The proposed grounds of appeal are as follows:
(1)The learned trial judge erred by failing to adopt and properly apply the correct test for causation, that is, whether the transport accident was a cause of the Applicant’s claimed injuries and sequelae.
(2)The learned trial judge erred in the application of the ‘results from’ test, and ought to have determined on the whole of the evidence that the transport accident was a cause of the Applicant’s claimed injuries and sequelae.
Ground 1 alleges specific error. Ground 2 alleges that, on the whole of the evidence the transport accident was a cause of the applicant’s claimed injuries and sequalae, contrary to the judge’s findings. In the written submissions there was a divergence between the parties as to the approach this court ought to take to a ground that alleges this sort of error. The applicant submitted that, in the absence of specific error, an onus rested with her to demonstrate that the decision was ‘plainly wrong’ or ‘wholly erroneous’. The respondent contended that we should conduct our own evaluation of the…

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: [2022] VSCA 269
Decision Date: 9 December 2022

CaseChat Overview and Summary

The applicant, Taylor, sought leave to appeal a decision of the County Court of Victoria which dismissed his application for leave to commence common law proceedings against the Transport Accident Commission. The dispute arose out of a transport accident that Taylor had suffered, resulting in serious injuries. The primary issue before the Court of Appeal was whether the trial judge applied the correct test for causation when determining that the accident was not the cause of the applicant’s injuries and related conditions. The appeal also examined whether the trial judge should have found that the accident was a cause of the applicant’s injuries and the subsequent medical conditions.

The Court of Appeal considered the relevant legal principles and authorities, including Gennimatas, Thapa, Principe and Petkovski. The court assessed the trial judge's application of the causation test and the reasoning behind the decision. It was determined that the trial judge correctly applied the causation test and appropriately assessed the evidence presented. The Court of Appeal found that the trial judge's conclusion that the accident was not the cause of the applicant’s injuries and related conditions was supported by the evidence and reasoning. Consequently, the appeal was dismissed, and the applicant was refused leave to appeal the County Court’s decision.

Orders