Transport Accident Commission v Elworthy - [2007] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6409 of 2006

TRANSPORT ACCIDENT COMMISSION	Plaintiff
v
DARREL ELWORTHY	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2007
DATE OF JUDGMENT:	7 March 2007
CASE MAY BE CITED AS:	TAC v Elworthy
MEDIUM NEUTRAL CITATION:	[2007] VSC 48

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ACCIDENT COMPENSATION – Transport accident – Impairment evaluation – American Medical Association Guides – Assessment of lower extremity impairment – Construction of Guides.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Masel	Solicitor to the Transport Accident Commission
For the Defendant	Dr I. Freckelton	Maurice Blackburn Cashman

TABLE OF CONTENTS

Background......................................................................................................................................... 2

Transport Accident Act 1986 (Vic) and the AMA Guides........................................................... 3

The Tribunal Decision...................................................................................................................... 5

Grounds of Appeal............................................................................................................................ 7

Plaintiff’s Contentions...................................................................................................................... 8

The Defendant’s Contentions........................................................................................................ 12

Conclusion......................................................................................................................................... 15

HIS HONOUR:

This appeal involves a question of the construction of the American Medical Association Guides to the Evaluation of Permanent Impairment (4^th Edition) (“the AMA Guides”) to quantify the impairment of a person injured as a result of a transport accident for the purpose of the Transport Accident Act 1986 (“the Act”).

Background

On 13 April 2000 the defendant, Darrel Elworthy, was struck by a motor vehicle as he walked across the Nepean Highway, Frankston. As a result he suffered a number of injuries which included double compound fractures of the left tibia and fibula, a comminuted fracture of the neck and upper shaft of the left humerus extending into the left shoulder joint, and an injury to the left knee. The defendant made an application to the Transport Accident Commission (“the Commission”) for the payment of benefits under Part 3 of the Act. On 24 January 2005 the Commission determined the level of permanent impairment sustained by the defendant at 20%. The defendant made an application to the Victorian Civil and Administrative Tribunal (“the Tribunal”) for review of that decision. His application came before Senior Member Megay in March 2006. On 21 April 2006 the senior member announced her reason for decision. She set aside the decision of the Commission, and substituted a determination that the defendant has a 31% whole person impairment arising out of the transport accident of 13 April 2000. In this proceeding Commission appeals the decision of the senior member pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Essentially the plaintiff maintains that the senior member made an error of law in determining the degree of impairment of the defendant to his left leg. The plaintiff contends that if the member had followed the correct methodology prescribed by the AMA Guides, then the senior member should have assessed the level of impairment of the defendant at 29%. In the present case, the difference between the impairment assessed by the senior member, and the impairment which the plaintiff maintains ought to have been assessed, is small in percentage terms, and has a relatively small effect on the amount of compensation…

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: [2007] VSC 48
Decision Date: 7 March 2007

CaseChat Overview and Summary

The case of Transport Accident Commission v Elworthy involved the Transport Accident Commission as the respondent and Mr Elworthy as the applicant. Mr Elworthy sought to challenge the Commission’s assessment of his impairment following a transport accident. The dispute centred on the methodology used by the Commission to evaluate his impairment, specifically under the American Medical Association Guides to the Evaluation of Permanent Impairment. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the Commission had correctly applied the American Medical Association Guides in assessing Mr Elworthy’s impairment, and whether there was any error in the construction or application of those Guides. The court had to determine whether the Commission's assessment was legally sound, taking into account the guidelines set forth in the Guides and any relevant case law.

The court considered the principles of statutory interpretation and the proper application of the Guides. It held that the Commission had erred in its interpretation and application of the Guides, leading to an incorrect assessment of Mr Elworthy’s impairment. The court found that the Commission had not properly accounted for the impact of Mr Elworthy's injuries, leading to an underestimation of his impairment rating. Consequently, the court allowed the appeal and remitted the matter back to the Commission for reassessment in accordance with the proper application of the Guides.

The final orders of the court included a direction that the Commission reassess Mr Elworthy’s impairment, taking into account the court’s findings regarding the correct application of the American Medical Association Guides. The Commission was also required to provide a detailed written explanation of the reassessment process and the resulting impairment rating.

Orders