Thomson v Transport Accident Commission - [2020] VSC 310

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 00838

CHARLENE MICHELLE THOMSON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDICIAL OFFICER:	Judicial Registrar Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF RULING:	29 May 2020
CASE MAY BE CITED AS:	Thomson v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VSC 310

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PRACTICE AND PROCEDURE – Application for stay of proceeding – Personal injury – Psychiatric injury – Medico-legal examination of plaintiff at defendant’s request – Examination involving alleged risk to plaintiff’s mental state – Reasonableness of request - Refusal to submit to examination – Whether prejudice to defendant preventing defense of case established – Reasonableness of refusal – Supreme Court (General Civil Procedure) Rules 2015, r 33.04 – Stace v Commonwealth (1989) 51 SASR 391; Pyman v Whitefriars College Inc [2019] VSC 361 applied - Downing v Wein [2005] VSC 134; Dikschei v Epworth Foundation [2010] VSC 435; Plaintiff [name withheld] v Stapleton [2017] NSWSC 914; JKZ v The Scots College [2018] NSWSC 1526 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Peter Burt, solicitor	Burt & Davies
For the Defendant	Mr Paul Bourke	Transport Accident Commission

JUDICIAL REGISTRAR:

The claim

The plaintiff, Ms Thomson, was involved in a motor vehicle accident (‘the accident’) on 30 April 2017 when a motorcycle ridden by John Robert Naffa (‘the rider’) veered into the path of the plaintiff’s vehicle. The rider died at the scene. The plaintiff claims she suffered psychiatric and psychological injuries as a result of the accident.

Ms Thomson commenced this proceeding on 19 February 2020 and sought entry into the Supreme Court’s Motor Vehicle Accident Fast Track Pilot (‘MVA Pilot’), a voluntary case management system which allows certain types of motor vehicle claims to be fast-tracked toward a trial. There are prerequisite conditions for entry into the MVA Pilot. These include that liability is admitted and that the matter has been ‘through the Protocols’, a term of art explained below.

The set of processes governed by the No Fault Dispute Resolution Protocols are commonly referred to as ‘the Protocols’, which were agreed between the TAC, the Law Institute of Victoria and the Australian Lawyers Alliance on 1 March 2005. They have been subsequently amended from time to time. The objective of the Protocols is to resolve disputes between claimants and the TAC. Most, though not all, transport accident claims that come before the Courts have first been ‘through the Protocols’, that is, that an attempt has been made to resolve the dispute pursuant to the terms of the Protocols. The Protocols encompass procedures in relation to how medical evidence is obtained by the parties, including the use of a joint expert agreed between the parties for the purpose of a Joint Medical Examination (‘JME’). The MVA Pilot requires that parties, ‘where possible, rely on expert material exchanged during the Protocols.’[1] Matters in the MVA Pilot are given a…

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] VSC 310
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of Thomson v Transport Accident Commission, the plaintiff sought compensation for psychiatric injuries arising from an accident. The Transport Accident Commission, as the defendant, requested a medico-legal examination of the plaintiff, which the plaintiff refused, citing potential harm to their mental state. The Supreme Court was tasked with determining whether the plaintiff's refusal to undergo the examination prejudiced the defendant's ability to defend the case, and if the refusal was reasonable under the circumstances.

The primary legal issue was whether the plaintiff's refusal to submit to a medico-legal examination constituted an abuse of process, thereby justifying a stay of proceedings. The court needed to assess the reasonableness of the defendant's request for the examination and whether the plaintiff's concerns about potential harm were valid. The court also considered the precedents set by Stace v Commonwealth, Pyman v Whitefriars College Inc, Downing v Wein, Dikschei v Epworth Foundation, Plaintiff [name withheld] v Stapleton, and JKZ v The Scots College to guide its decision.

The court found that the defendant's request for a medico-legal examination was reasonable, as it was necessary to establish the nature and extent of the plaintiff's psychiatric injuries. The court acknowledged the plaintiff's concerns about the examination but determined that these did not outweigh the need for the defendant to gather evidence. The court concluded that the plaintiff's refusal to participate in the examination prejudiced the defendant's ability to defend the case, and therefore, the plaintiff's refusal was not reasonable. Consequently, the court granted the defendant's application for a stay of proceedings.

The court ordered that the proceedings be stayed until the plaintiff underwent the medico-legal examination. The stay was to remain in effect until the plaintiff complied with the examination, thereby enabling the defendant to effectively defend the case.

Orders