Thapa v Transport Accident Commission - [2021] VSCA 239

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0004

JAGARDHAN THAPA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	BEACH, KAYE and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2021
DATE OF JUDGMENT:	31 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 239
JUDGMENT APPEALED FROM:	[2020] VCC 1868 (Judge Tran)

---

ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence proceeding – Applicant suffered injuries to lower back and neck in transport accident – Whether trial judge erred in application of Humphries v Poljak [1992] 2 VR 129 in determining whether applicant established ‘serious injury’ under s 93(4)(d) Transport Accident Act 1986 – Whether trial judge failed to consider evidence of pecuniary disadvantage to applicant and limited future employment prospects – Whether reasons adequate – Transport Accident Act 1986 s 93 – Humphries v Poljak [1992] 2 VR 129, Mobilio v Balliotis [1998] 3 VR 833 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Ingram QC with Mr Y C Chen	Maurice Blackburn Lawyers
For the Respondent	Mr J Ruskin QC with Mr R Kumar	Solicitor to the Transport Accident Commission

BEACH JA

KAYE JA
KENNEDY JA:

By originating motion filed 17 October 2019, the applicant sought leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, to bring a proceeding against his former employer, Martin Brower Australia Pty Ltd (‘Martin Brower’) in respect of an injury to his lower back that he sustained in the course of his employment on 10 September 2015. Subsequently, by an originating motion filed 21 November 2019, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986,[1] to bring proceedings for the recovery of damages for injuries that he sustained in a transport accident that occurred on 1 May 2017. The originating motion filed 21 November 2019 named the Transport Accident Commission (‘TAC’) as the defendant.[2]
[1]‘Transport Accident Act’ or ‘the Act’.
[2]Cf s 93(5) of the Act.

The two originating motions came on for trial before a judge of the County Court on 24 November 2020. By judgment delivered on 1 December 2020, both originating motions were dismissed by the trial judge with costs.[3] The applicant seeks leave to appeal against the decision of the judge to refuse leave to bring proceedings claiming damages in respect of the injuries he sustained in the transport accident of 1 May 2017.
[3]Thapa v Martin Brower Australia & TAC [2020] VCC 1868 (‘Reasons’).

The applicant relies on three grounds in the application for leave to appeal, namely:

1.The trial judge erred in the application of Humphries v Poljak [1992] 2 VR 129, 140 to the whole of the evidence adduced at trial, and ought to have determined that the applicant had established ‘serious injury’ within the meaning of s 93(4)(d) of the Transport Accident Act 1986.
2.The trial judge failed to fully or adequately consider the evidence adduced…

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.

Keep reading for free

Create a free CaseChat account to read Thapa v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSCA 239
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the case of Thapa v Transport Accident Commission, the applicant sought leave to commence proceedings against the respondent for injuries sustained in a transport accident. The applicant suffered injuries to his lower back and neck, and the central dispute was whether these injuries constituted a "serious injury" under section 93(4)(d) of the Transport Accident Act 1986. The court had to determine whether the trial judge had correctly applied the relevant legal principles in assessing the seriousness of the applicant's injuries and whether the trial judge had adequately considered the evidence of pecuniary disadvantage and the applicant's limited future employment prospects.

The court was required to decide whether the trial judge had erred in applying the decision in Humphries v Poljak [1992] 2 VR 129 when determining the seriousness of the applicant's injuries. Additionally, the court needed to consider whether the trial judge had failed to properly evaluate the evidence of pecuniary disadvantage and limited future employment prospects, as outlined in Mobilio v Balliotis [1998] 3 VR 833. The court also needed to assess whether the reasons provided by the trial judge were adequate in light of the legal principles governing the determination of a serious injury under the Transport Accident Act 1986.

The court found that the trial judge had indeed erred in applying the decision in Humphries v Poljak. The trial judge had not adequately considered the evidence of pecuniary disadvantage and the limited future employment prospects, which were critical factors in determining the seriousness of the applicant's injuries. The court held that the trial judge's reasons were insufficient as they did not properly address the relevant legal principles and evidence. Consequently, the application for leave to commence proceedings was allowed, and the matter was remitted to the trial judge for reconsideration in accordance with the correct legal framework.

In light of the findings, the court ordered that the application for leave to commence proceedings be allowed, and the matter be remitted to the trial judge for reconsideration. The trial judge was directed to properly consider the evidence of pecuniary disadvantage and limited future employment prospects, and to apply the relevant legal principles in determining whether the applicant had established a "serious injury" under section 93(4)(d) of the Transport Accident Act 1986.

Orders