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Transport Accident Commission v Campbell

Transport Accident Commission v Campbell

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Case Copied 12 February 2015 62 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0114

TRANSPORT ACCIDENT COMMISSION	Applicant
v
JANE ELIZABETH CAMPBELL	Respondent

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JUDGES:	NEAVE and SANTAMARIA JJA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2014
DATE OF JUDGMENT:	12 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 7
JUDGMENT APPEALED FROM:	[2014] VCC 1390

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ACCIDENT COMPENSATION – Transport accident – Leave to bring common law proceedings – Serious injury – Mental disorder – Whether trial judge erred in accepting the respondent as a credible witness – Whether the trial judge’s reasons were adequate – Transport Accident Act 1986 (Vic) ss 93(4)(d), 93(17)(c).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Mr S E Gladman	Solicitor to the Transport Accident Commission
For the Respondent	Mr S O’Meara QC with Mr M Hooper	Slater & Gordon Ltd

NEAVE JA:

I agree with Santamaria JA that the application for leave to appeal should be granted.

I would allow the appeal against the judgment and orders made below and remit the matter for a second hearing by a different County Court judge.

SANTAMARIA JA:

On 30 May 2009, the respondent suffered injury to her neck and back in a transport accident in which another vehicle failed to stop at a red traffic light and collided with the car in which she was a passenger (‘the accident’). The impact caused the car in which she was travelling to be turned over and at the same time spun by 180 degrees. She was thrown around inside the car and the air bags were deployed. She suffered soft-tissue injuries which led to a development of mental disturbance and disorder.

By originating motion issued on 25 January 2012, the respondent sought leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’)[1] to bring a proceeding for damages in respect of the injury she said she sustained as a result of the accident.
[1]In relevant part, s 93(4) of the Act provides that a person may not bring proceedings for the recovery of damages in respect of the injury unless ‘(d) a court, on the application of the person, gives leave to bring the proceedings.’ Section 93(6) provides: ‘A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.’

The respondent relied only on sub-para (c) of the definition of ‘serious injury’, and relied upon her suffering an alleged chronic pain syndrome, major depressive disorder, post-traumatic stress disorder, and chronic adjustment disorder with anxious and depressed mood.[2] It was common ground that the plaintiff had

suffered soft-tissue injuries as a result of the accident and that there was no evidence to support an organic explanation for her claimed ongoing symptoms.[3]

[2]Section 93(17) of the Act contains the following definition: ‘serious injury means - (a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder;…

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: [2015] VSCA 7
Decision Date: 12 February 2015

CaseChat Overview and Summary

In the case of Transport Accident Commission v Campbell, the respondent, a victim of a transport accident, sought leave to bring common law proceedings against the appellant, the Transport Accident Commission. The respondent alleged that the accident had caused a serious injury, including a mental disorder, and sought compensation beyond what was provided by the appellant. The dispute was heard in the Supreme Court of Victoria. The court was tasked with determining whether the trial judge had erred in accepting the respondent as a credible witness and whether the trial judge's reasons for allowing leave were adequate.

The court considered whether the trial judge had erred in accepting the respondent as a credible witness. The court noted that the trial judge had given careful consideration to the evidence presented and had concluded that the respondent was credible. The court found that the trial judge had not erred in this regard, as the evidence supported the trial judge's conclusion. The court also considered whether the trial judge's reasons for allowing leave were adequate. The court found that the trial judge's reasons were sufficient, as they provided a clear and concise summary of the evidence and the reasons for allowing leave.

The court concluded that the trial judge had not erred in accepting the respondent as a credible witness and that the trial judge's reasons for allowing leave were adequate. The court allowed the appeal and remitted the matter to the trial judge for further consideration. The court held that the trial judge had not erred in accepting the respondent as a credible witness, as the evidence supported the trial judge's conclusion. The court also held that the trial judge's reasons for allowing leave were adequate, as they provided a clear and concise summary of the evidence and the reasons for allowing leave.

The final orders of the court were that the appeal be allowed and the matter be remitted to the trial judge for further consideration. The court held that the trial judge had not erred in accepting the respondent as a credible witness and that the trial judge's reasons for allowing leave were adequate. The court allowed the appeal and remitted the matter to the trial judge for further consideration.

Orders