Transport Accident Commission v Coyle - [2001] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7800 of 2001

TRANSPORT ACCIDENT COMMISSION
	Appellant
v.
JACQUELINE COYLE	Respondent

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JUDGES:	BROOKING, PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2001
DATE OF JUDGMENT:	19 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 236

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Accident compensation – Transport accident – Commission’s decision that degree of impairment unlikely to exceed 10% - Application for review – Decision confirmed on review – Earlier offer by Commission “to settle” upon applicant’s withdrawing application for review, each party to pay its own costs – Whether “offer to settle” attracting an order for costs under s.112 – Whether s.112 applicable – Transport Accident Act 1986 ss.74, 77, 79, Victorian Civil andAdministrative Tribunal Act 1998 ss.109, 112, 159, Schedule 1, Items 92 and 93.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C.M. Maxwell, Q.C. and Mr J.P. Gorton	TAC Law Pty. Ltd.
For the Respondent	Mr A. Graham, Q.C. and Mr T.P. Tobin	Clark & Toop

BROOKING, J.A.:

I agree with Phillips, J.A.

PHILLIPS, J.A.:

This is an appeal by leave under s.148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") from an order of the Victorian Civil and Administrative Tribunal ("the Tribunal") constituted by a Vice-President. The order under appeal was made on 28 August 2001 and leave to appeal was granted on 26 October last. The hearing of the appeal has been expedited because of the importance, it is said, of the question raised, being the proper meaning and effect of s.112 of the VCAT Act in the context in particular of a review before the Tribunal of a decision of the appellant Commission under the Transport Accident Act 1986 ("the TAA").

Background

The respondent was involved in a transport accident on 26 February 1996. On 21 May 1996 she made a claim under the TAA and on 31 May the appellant accepted the claim "for medical and related expenses". Two years later, on 7 May 1998, the appellant wrote to the respondent adverting to the possibility of her being entitled to an "impairment benefit" and inviting her to submit a medical report "to assist [it] in assessing whether" she was so entitled. Under the TAA an impairment benefit is payable when the victim of a transport accident is assessed as having a degree of impairment which is more than 10 per cent: see s.47 as to lump sum and s.48 as to periodic payments (the amount of the payment depending upon each percentage degree of impairment over 10).

In response to the appellant's letter, the respondent submitted, it appears, a report dated 18 August 1998 from her physiotherapist, one Sandor. Mr. Sandor described the respondent's injuries as having "improved dramatically" and her long term prognosis as "good" and, although recognising "the chance of recurring

discomfort in her neck, shoulder and upper back", he opined that such discomfort "should be easily controlled by a few sessions of…

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.

Continue reading Transport Accident Commission v Coyle

Details

AGLC: Transport Accident Commission v Coyle [2001] VSCA 236
Case: [2001] VSCA 236
Decision Date: 19 December 2001

CaseChat Overview and Summary

The case involved a dispute between the Transport Accident Commission and Mr. Coyle, regarding the compensation Mr. Coyle was to receive for an accident. The dispute reached the Court of Appeal, a higher court in Victoria. The Transport Accident Commission had previously decided that Mr. Coyle's degree of impairment was unlikely to exceed 10%, and Mr. Coyle applied for a review of this decision. The Court of Appeal upheld the Commission's decision on review, but the Commission made an offer to settle the case if Mr. Coyle withdrew his application for review. Each party was to bear their own costs in this matter. The central legal issues were whether the offer to settle was attractive enough to warrant an order for costs under section 112 and whether section 112 was applicable in this context.

The court examined the Transport Accident Act 1986 and the Victorian Civil and Administrative Tribunal Act 1998 to determine the applicability of section 112 in this case. The court held that an offer to settle a case, even if it was made under the condition that the applicant withdraw their application for review, could still attract an order for costs under section 112. However, the court found that section 112 was not applicable in this case, as it did not fall under the specific circumstances outlined in the statutes. As a result, the court ruled that neither party was entitled to an order for costs.

The court's decision confirmed the earlier decision of the Transport Accident Commission that Mr. Coyle's degree of impairment was unlikely to exceed 10%, and each party bore their own costs. The court did not grant an order for costs under section 112 of the Victorian Civil and Administrative Tribunal Act 1998, as it did not meet the specific criteria outlined in the statutes. The final orders of the court were that Mr. Coyle's application for review was dismissed, and each party was to bear their own costs.

Orders