Legal Research
Cases
Transport Accident Commission v Garcia

Transport Accident Commission v Garcia

Link copied

Case Copied 24 August 2015 19 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0024

TRANSPORT ACCIDENT COMMISSION	Applicant
v
EMMANUEL GARCIA	Respondent

---

JUDGES:	HANSEN and BEACH JJA, GARDE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2015
DATE OF JUDGMENT:	24 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 225
JUDGMENT APPEALED FROM:	[2015] VCC 140 (Judge Misso)

---

ACCIDENT COMPENSATION – Transport accident – Serious injury application – Permanent serious disfigurement – Scarring – Scar 15 cm in length on respondent's left upper arm – Consequences – Primary judge concluded that injury was serious – Whether specific error established – Specific error not established – Whether decision plainly wrong – Question of fact and degree – Decision not plainly wrong – Leave to appeal granted – Appeal dismissed – Transport Accident Act 1986 s 93(17)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M F Wheelahan QC with Ms M Norton	Solicitor to the Transport Accident Commission
For the Respondent	Mr A J Keogh SC with Mr C Sidebottom	Slater and Gordon Ltd

HANSEN JA
BEACH JA
GARDE AJA:

On 29 September 2012, Emmanuel Garcia, the respondent, was involved in a transport accident, when a motor vehicle in which he was travelling collided with another motor vehicle that had attempted to execute a right-hand turn across his path. As a result of the accident, the respondent suffered a fracture of his left humerus that required treatment by open reduction and internal fixation with a plate and multiple screws. The respondent has now been left with a 15 centimetre long scar down the front of his left upper arm.

By an originating motion filed in the County Court on 4 September 2014, the respondent sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to bring proceedings at common law claiming damages for the injuries he sustained as a result of the accident. The application was heard in the County Court by Judge Misso on 19 February 2015. At the hearing of the application, the respondent relied upon paragraph (b) of the definition of ‘serious injury’ in s 93(17) of the Act, namely, ‘permanent serious disfigurement’. The disfigurement the subject of the application was the scar on the respondent’s left upper arm.

On the hearing of the application, the respondent relied upon affidavits he swore on 1 May 2014 and 30 January 2015. A number of medical reports and photographs of the respondent’s scarring were also tendered. The only witness to give viva voce evidence was the respondent. He gave brief evidence-in-chief, adopting his affidavits and identifying photographs of his scarring. During the course of his evidence, the judge inspected the respondent’s scarring. The Transport Accident Commission (‘the Commission’) chose not to cross-examine the respondent.

On the following day, on 20 February 2015, the judge granted the respondent’s application and gave him leave to bring a proceeding at common law to recover damages for the injuries he suffered in the accident.[1]
[1]Garcia v Transport Accident Commission [2015]…

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.

Keep reading for free

Create a free CaseChat account to read Transport Accident Commission v Garcia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSCA 225
Decision Date: 24 August 2015

CaseChat Overview and Summary

The Transport Accident Commission contested the respondent's claim for compensation, arguing that the injury was not serious. The respondent, Mr Garcia, sought compensation for a serious injury sustained in a transport accident, claiming he had suffered a permanent serious disfigurement due to scarring on his left upper arm. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary judge had concluded that Mr Garcia's injury was serious, but the Transport Accident Commission challenged this decision.

The court was required to determine if the primary judge had made a specific error in concluding that the injury was serious and, if not, whether the decision was plainly wrong. The court considered the severity of the scarring and its impact on Mr Garcia's life, including the length of the scar and the consequences of the injury. The court acknowledged that the decision involved questions of fact and degree.

The court found no specific error in the primary judge's decision. It held that the conclusion that the injury was serious was not plainly wrong, given the evidence presented. The court observed that the scarring was significant and had a considerable impact on Mr Garcia's life. As a result, the appeal was dismissed, and leave to appeal was granted to the Court of Appeal. The court's decision was that the injury was indeed serious, and the compensation claim was upheld.

Orders