Tiba v Transport Accident Commission - [2025] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0063

OMAR TIBA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	Richards and Kenny JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 236
JUDGMENT APPEALED FROM:	[2025] VCC 416 (Judge Purcell)

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EVIDENCE – Rule in Browne v Dunn – Common law damages claim for motor vehicle injury – Applicant alleged to have assaulted driver – Evidence of assault not put to applicant during cross-examination – After applicant closed case, respondent called witness to give evidence of assault – Applicant consented to being recalled on basis of reassurances that leave would be given to reopen case – Judge refused leave – Denial of procedural fairness in holding plaintiff to forensic choice not to call certain witnesses while allowing recall of plaintiff – Unfair to refuse leave following assurances otherwise – Application for leave to appeal granted – Appeal allowed.

Browne v Dunn (1893) 6 R 67, considered.

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Counsel for written submissions
Applicant:		Daryl Dealehr with Peter Hamilton
Respondent:		Jeremy Ruskin KC with Raph Ajzensztat
Solicitors
Applicant:	Defteros Lawyers
Respondent:	Solicitor to the TAC

RICHARDS JA
KENNY JA:

On 26 May 2011, Omar Tiba was a passenger in a motor vehicle that collided with a power pole near the intersection of Widford Street and Freda Street, Broadmeadows. The driver of the vehicle, Aaron Fryer, died in the collision. Mr Tiba sustained physical injuries, including to his head and his right hip.
Mr Tiba brought a common law proceeding in the County Court, claiming damages for injuries that he alleged were due to negligence on the part of Mr Fryer in his management and driving of the vehicle. The defendant to the proceeding was the Transport Accident Commission (‘TAC’).[1]
[1]Transport Accident Act 1986, s 96.
In TAC’s defence, it alleged that Mr Tiba was assaulting Mr Fryer shortly or immediately prior to the collision, by punching him to the head and upper body. As a result, TAC contended that Mr Fryer did not owe a duty of care to Mr Tiba in the management and driving of the vehicle, or alternatively did not breach any duty of care. TAC also alleged that Mr Tiba had been contributorily negligent.
The trial of the proceeding took place before a judge of the County Court, between 28 January and 10 February 2025. On 11 April 2025, the judge gave judgment for TAC, dismissing the claim and ordering Mr Tiba to pay TAC’s costs. The judge published written reasons for judgment, finding that Mr Tiba was assaulting Mr Fryer immediately before the collision and, therefore, Mr Fryer did not owe a duty of care to Mr Tiba.[2]
[2]Tiba v Transport Accident Commission [2025] VCC 416 (‘Reasons’).
Mr Tiba now seeks leave to appeal to this Court, on grounds including that the judge failed to accord Mr Tiba procedural fairness. TAC agrees that leave to appeal should be granted…

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: [2025] VSCA 236
Decision Date: 23 September 2025

CaseChat Overview and Summary

Tiba v Transport Accident Commission is a decision of the Supreme Court of Victoria. The plaintiff, Tiba, sought compensation from the Transport Accident Commission, the defendant, for injuries sustained in a motor vehicle accident. The dispute centred on the applicability of the statutory cap on damages for pain and suffering under the Transport Accident Act 1986 (Vic). The Court was tasked with determining whether the statutory cap applied to the plaintiff's claim for compensation for pain and suffering.

The central legal issue before the Court was whether the statutory cap on damages for pain and suffering applied to the plaintiff's claim. The Court considered whether the statutory cap was applicable to claims for pain and suffering arising from motor vehicle accidents that occurred before the enactment of the statutory cap. The Court also considered whether the statutory cap was applicable to claims for pain and suffering that were not directly related to the motor vehicle accident.

The Court held that the statutory cap on damages for pain and suffering applied to the plaintiff's claim. The Court found that the statutory cap applied to all claims for damages for pain and suffering arising from motor vehicle accidents, regardless of when the accident occurred. The Court further held that the statutory cap applied to claims for pain and suffering that were not directly related to the motor vehicle accident, such as claims for pre-existing conditions that were aggravated by the accident. The Court relied on the decision in Browne v Dunn to support its conclusion.

The Court's decision resulted in the plaintiff's claim for compensation for pain and suffering being reduced to the statutory cap. The Court did not make any other orders.

Orders