Transport Accident Commission v Harvey

[1998] VSC 44

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 6114 of 1995

TRANSPORT ACCIDENT	Plaintiff
COMMISSION
v
JOHN HENRY WAKEHAM HARVEY	Defendant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 1998
DATE OF JUDGMENT:	31 August 1998
CASE MAY BE CITED AS	TAC v. Harvey
MEDIA NEUTRAL CITATION:	[1998] VSC 44

CATCHWORDS: Transport accident - car driver suffered serious injuries when her car collided with a cow that had escaped from the defendant’s property - in a prior proceeding the jury found that there was no negligence on the part of the defendant that was a cause of the driver’s injuries - whether TAC was entitled to seek indemnity from the defendant in the subsequent proceeding.

Transport Accident Act 1986 (Vic) s104(1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gorton	Maddock Lonie & Chisholm
For the Defendant	Mr R Stanley QC
with Mr M McInnis	Sholl Nicholson

HER HONOUR:

1. On 5 November 1997 Hedigan J ordered that this proceeding be heard subsequently to 5786 of 1996 (“Ford v Harvey”), that the evidence given in Ford v Harvey stand as evidence in this proceeding subject to relevance and all just objections, and that the parties in this proceeding be at liberty to adduce further relevant evidence at the hearing.

2. On 14 May 1992 a car driven by Mrs Ford, the plaintiff in Ford v Harvey, collided with a cow which, it was not in issue, had escaped from the property of Mr Harvey, the defendant in both proceedings. As a result of that collision Mrs Ford suffered very serious injuries. Substantial medical and like expenses have been paid to her or on her behalf by the Transport Accident Commission (“the TAC”). At the date of this proceeding the amounts so paid were:

   pursuant to section 44 of the

Transport Accident Act 1986 (“the Act”):	$ 6,794.29
pursuant to section 60 of the Act:	$341,232.38

1. The TAC seeks indemnity from the defendant under section 104(1) of the Act. By virtue of section 11(2) of the Transport Accident (General Amendment) Act 1994 the relevant provision is section 104(1) as it stood on the date of the collision. That provision reads:

   If an injury arising out of a transport accident in respect of which the [TAC] has made payments under section 44, 45 or 60 arose under circumstances which, but for section 93, would have created a legal liability in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of pecuniary loss suffered by reason of the injury before the entitlement of the injured person to compensation under this Act was reviewed under section 46 or by reason of costs or expenses of a kind referred to in section 60, the [TAC] is entitled to be indemnified by the first- mentioned person for such proportion of the amount of the liability of the [TAC] to make payments under section 44, 45 or 60 in respect of the injury as is appropriate to the degree to which the injury was attributable to the act, default or negligence of the first-mentioned person.

2. It is not in issue that the injuries to Mrs Ford arose out of a transport accident, or that the payments described above have been properly made. The question which arises is whether, but for section 93 of the Act, the circumstances would have created a legal liability in the defendant to pay damages in terms of the section above.

3. On 20 August 1998 the jury in Ford v Harvey answered No to the question:

   Was there negligence on the part of the defendant that was a cause of the plaintiff’s injuries?

   Accordingly, judgment was entered for the defendant. This proceeding was then called on before me. Neither party adduced further evidence, or sought to object to any part of the evidence in Ford v Harvey and accordingly that evidence stands as the evidence in this proceeding.

4. Mr Gorton, for the plaintiff in this proceeding, who had been present in court throughout the hearing in Ford v Harvey, submitted that the Court should find for the plaintiff. This was a separate proceeding, between different parties, as to which the Court should make up its own mind on the evidence. The Court was not obliged to adopt the verdict of the jury. He adopted the submissions of counsel for the plaintiff in Ford v Harvey and made some additional submissions as to the evidence.

5. The evidence in Ford v Harvey occupied more than four days. Both parties were represented by experienced senior counsel, who addressed the jury appropriately. At no stage did I consider it appropriate to take the matter away from the jury. The deliberations of the jury occupied some four hours. There was no suggestion by counsel for the plaintiff that the verdict was perverse. The verdict was properly open to the jury on the evidence before it, and I was not surprised by the verdict.

6. In all the circumstances, I am satisfied that it is appropriate that the plaintiff’s claim be dismissed. The matter of costs of both proceedings is still to be argued.

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