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;…
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- Case
- [2015] VSCA 7
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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