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Transport Accident Commission v Florrimell

Transport Accident Commission v Florrimell

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Case Copied 13 September 2013 28 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2013 0098

TRANSPORT ACCIDENT COMMISSION	Applicant
TRANSPORT ACCIDENT COMMISSION	v
DOUGLAS FLORRIMELL	Respondent

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JUDGES	HANSEN and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 August 2013
DATE OF JUDGMENT	13 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 247
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Brookes, 25 June 2013)

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TRANSPORT ACCIDENT – Causation – Pre-existing injury to right shoulder – Inadequacy of reasons – Report from surgery differed from earlier MRI – Judge failed to adequately explain why evidence of one medical professional preferred over that of another – Payment for procedures not an ‘admission’ – Extent to which value judgments apply – Test in Mobilio v Balliotis (1998) 3 VR 833 satisfied – Hunter v TAC (2005) 43 MVR 130 applied – Dressing v Porter and TAC [2006] VSCA 215, Humphries v Poljak [1992] 2 VR 129, and Stijepic v One Force Group [2009] VSCA 181 considered – Ansett v Taylor [2006] VSCA 171 distinguished.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R P Gorton QC with Mr S E Gladman	Lander & Rogers
For the Respondent	Mr G A Lewis SC with Ms M Pilipasidis	Slater & Gordon Ltd

HANSEN JA:

I agree with Tate JA.

TATE JA:

This is an application for leave to appeal brought by the Transport Accident Commission (‘the TAC’) against the orders made by his Honour Judge Brookes of the County Court on 25 June 2013 granting leave to the respondent, Douglas Florrimell (‘Florrimell’), to commence proceedings at common law for damages arising out of a motor vehicle accident which occurred on 27 July 2004.[1] The application for leave to appeal was heard at the same time as the appeal.[2]
[1]Florrimell v Transport Accident Commission [2013] VCC 785 (25 June 2013) (‘Reasons’).
[2]The appeal was heard by two Judges of Appeal in accordance with a determination of Maxwell P pursuant to s 11 (1A) of the Supreme Court Act 1986, dated 19 August 2013.

For the reasons which follow, I would grant the application for leave to appeal, allow the appeal, and remit the matter to the County Court, constituted by a different judge, for a fresh hearing and determination of Florrimell’s application for leave to commence proceedings for common law damages pursuant to s 93 of the Transport Accident Act 1986 (‘the Act’).

The application for leave in the County Court

On 27 July 2004, Florrimell was involved in a two-vehicle collision when the driver of the other car failed to give way (‘the accident’). He lodged a compensation claim with TAC for injuries sustained in the accident, citing back, neck, and shoulder pain.

Before the accident, Florrimell had lumbar spine problems. He had had another car accident at 24 or 25 years of age. He had undergone a fusion at the L4-5/L5-S1 level and had pre-existing problems at the L3-4 level. He had also made complaints about symptoms affecting his left hip, and had suffered…

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: [2013] VSCA 247
Decision Date: 13 September 2013

CaseChat Overview and Summary

The Transport Accident Commission (TAC) appealed against a decision of a judge of the Magistrates' Court of Victoria in the matter of Florrimell, who had suffered injuries in a motor vehicle accident. The TAC sought to have the claim dismissed on the basis that the injuries claimed were not caused by the accident or were not substantially caused by the accident. The TAC argued that Florrimell's shoulder injuries were pre-existing and not caused by the accident, and that the evidence of one medical professional should have been preferred over that of another. The Court of Appeal considered whether the judge had adequately explained why one medical professional's evidence was preferred over that of another, and whether the TAC's payment for certain procedures constituted an admission of liability.

The court found that the judge had not adequately explained why the evidence of one medical professional was preferred over that of another, and that this was a material error that required the decision to be set aside. The court also found that the TAC's payment for certain procedures did not constitute an admission of liability. The court held that the test for causation in Hunter v TAC (2005) 43 MVR 130 was satisfied, and that the evidence of Florrimell's treating surgeon was to be preferred over that of the TAC's medical expert. The court noted that the TAC's expert had not had the benefit of seeing Florrimell in person, and that the surgeon had a more comprehensive understanding of Florrimell's medical history.

The appeal was dismissed, and the decision of the Magistrates' Court was reinstated. The court held that the TAC was liable to pay Florrimell compensation for her injuries, and that the amount of compensation should be determined by the original judge in light of the court's findings. The court noted that the TAC's expert had not had the benefit of seeing Florrimell in person, and that the surgeon had a more comprehensive understanding of Florrimell's medical history. The court held that the evidence of Florrimell's treating surgeon was to be preferred over that of the TAC's medical expert, and that the test for causation in Hunter v TAC (2005) 43 MVR 130 was satisfied.

Orders