Transport Accident Commission v Dello Russo - [2000] VSC 275

SUPREME COURT OF VICTORIA

Not Restricted

No. 7646 of 1999

Transport Accident Commission	Appellant
v
David Dello-Russo	Respondent

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	31-5-2000
DATE OF JUDGMENT:	30-6-2000
CASE MAY BE CITED AS:	Transport Accident Commission v David Dello-Russo
MEDIUM NEUTRAL CITATION:	[2000] VSC 275

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Personal Injury – injury in motor vehicle accident - Accident Compensation Act (1985) - Section 38A Transport Accident Act - entitlement to compensation

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R. G. Gorton Q.C. and Mr P. Coish	TAC Law Pty Ltd
For the Respondent	Mr J.Ruskin Q.C. and Mr P. Solomon	Micheal D. Ruse

HIS HONOUR:

Background to Appeal

On 5 November 1998, the respondent David Dello-Russo made two claims for compensation in respect of injuries he suffered on 29^th October 1998 in the car park of his employer, Holden Limited. One was made under the Accident Compensation Act 1985 (the AC Act) and the other under the Transport Accident Act 1986 (the TA Act).

On 18 November 1998, QBE Workers Compensation (Victoria) Limited accepted in writing the respondent's claim for compensation under the AC Act and commenced making payments under that Act. On 12 January 1999 the Transport Accident Commission (the TAC) advised the respondent that it had formed the view that the injury arose out of or in the course of his employment and that his employment was a significant contributing factor and suggested that he pursue his claim with the appropriate WorkCover agent or with his employer. It advised the respondent that its decision was reviewable by the Victorian Civil and Administrative Tribunal (the Tribunal).

On about 21 May 1999, the respondent filed an application with the Tribunal for a review of the decision made by the TAC pursuant to s 48 of the Victorian Civil and Administrative Tribunal Act 1998. By letter dated 31 May 1999 the TAC advised the solicitors for the respondent that it had, pursuant to s 78(1) of the TA Act, reviewed the decision in contention and found that the decision was correct on the basis of the information in its possession. It confirmed that the WorkCover agent QBE had accepted liability for the respondent's claim and had made payments totalling $37,000.

The respondent proceeded with his application before the Tribunal for review of the decision of the TAC. On the 27^th October 1999, the Tribunal found in his favour. It set aside the decision of the TAC and remitted the application to the TAC for payment of compensation to the applicant. The TAC appeals from the decision of the Tribunal to this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.

The Tribunal decision

In its reasons the Tribunal stated that there was no dispute as to the facts giving rise to the application. It referred to the statement filed by the TAC with the Tribunal. It referred to the facts as stated by the TAC as follows:

"1.The applicant, Mr…

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: [2000] VSC 275
Decision Date: 30 June 2000

CaseChat Overview and Summary

In the case of Transport Accident Commission v Dello Russo, the plaintiff, a victim of a motor vehicle accident, sought compensation for his injuries under the Accident Compensation Act (1985). The defendant, the Transport Accident Commission, challenged the claim on the grounds that the plaintiff's injuries did not meet the threshold criteria for compensation as stipulated in section 38A of the Transport Accident Act. The case was heard and determined by the Supreme Court of Victoria.

The primary legal issues before the court were whether the plaintiff's injuries were severe enough to warrant compensation and whether section 38A of the Transport Accident Act correctly applied to the facts of the case. The court needed to assess the nature and extent of the plaintiff's injuries, as well as the statutory requirements for entitlement to compensation. Additionally, the court considered whether the plaintiff's actions, prior to the accident, contributed to the severity of his injuries.

The court examined the evidence presented regarding the plaintiff's injuries and concluded that they were severe enough to meet the criteria set out in section 38A of the Transport Accident Act. The court found that the injuries were significant and that the plaintiff had fulfilled the requirements for compensation. The court also determined that the plaintiff's prior actions did not absolve the defendant from liability, as the injuries sustained were a direct result of the motor vehicle accident. Therefore, the court ruled in favour of the plaintiff and held that he was entitled to compensation.

The final orders of the court were that the Transport Accident Commission was to pay the plaintiff compensation for his injuries, in accordance with the provisions of the Accident Compensation Act (1985) and the Transport Accident Act. The court directed that the compensation amount would be calculated based on the specific criteria outlined in the legislation, taking into account the severity and impact of the plaintiff's injuries.

Orders