Transport Accident Commission v Hogan - [2013] VSCA 335

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCl 2012 0103
TRANSPORT ACCIDENT COMMISSION	Appellant
v
VAUGHAN HOGAN	Respondent

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JUDGES	REDLICH, PRIEST JJA and MACAULAY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 May 2013
DATE OF JUDGMENT	27 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 335
JUDGMENT APPEALED FROM	[2012] VSC 206 (Croft J)

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TRANSPORT ACCIDENT COMPENSATION – Application for compensation by way of purchase of a quad bike – Whether a quad bike is a ‘motor vehicle’ under the Transport Accident Act 1986 (Vic) and Road Safety Act 1986 (Vic) – Transport Accident Commission v Serbec [1993] 6 VAR 151 – Transport Accident Commission v Ball [1991] 1 VR 64 – Whether the Commission’s only power to fund the purchase of a motor vehicle is Transport Accident Act (1986) (Vic) ss 60(3) and (3A) – Whether the Commission has the power to fund the purchase of a quad bike as a ‘rehabilitation service’ –Transport Accident Act 1986 (Vic), ss 23 and 60(2) – Whether the provision of a ‘rehabilitation service’ must be subject to a structured program – Keler v Transport Accident Commission [2002] VCAT 445.

WORDS AND PHRASES – Meaning of ‘motor vehicle’ – Meaning of ‘rehabilitation service’ – Meaning of ‘aid’, ‘appliance’ or ‘apparatus’.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P Solomon SC	Solicitor to the TAC
Mr C Young
For the Respondent	Mr J Brett	Arnold Thomas & Becker
Mr J Valiotis

REDLICH JA

PRIEST JA
MACAULAY AJA:

Introduction

This appeal raises questions about the Transport Accident Commission’s liability to fund the purchase of a recreational motor vehicle to be used in the rehabilitation of a person injured in a transport accident.

Mr Hogan, the respondent, suffered serious injuries whilst riding a motorcycle on 10 June 2007, resulting in incomplete quadriplegia at the C5/C6 level of his cervical spine. In June 2008, the appellant (‘Commission’) contributed towards the purchase cost of a Volkswagen Transporter motor vehicle, also paying for certain modifications to enable Mr Hogan to drive it.

When Mr Hogan later sought funding from the Commission for the purchase of a Polaris RZR 800 EFI quad‑bike (‘Polaris’) to be used for recreational activities, the Commission declined that request. On 18 October 2011, the Victorian Civil and Administrative Tribunal (‘Tribunal’) dismissed Mr Hogan’s application for review of the Commission’s decision. On 18 May 2012, Croft J allowed Mr Hogan’s appeal and ordered the Commission to fund the purchase costs of the Polaris.

On 16 August 2012, the Court of Appeal (Warren CJ and Beach AJA) gave the Commission leave to appeal against Croft J’s judgment and orders, upon the receipt of undertakings given by the Commission that it would pay for Mr Hogan’s costs, both of the appeal and the proceedings below. In granting leave to appeal, their Honours emphasised that it would be in the interests of justice for this Court to consider the questions raised by the proposed appeal because the questions of law involved in the…

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 335
Decision Date: 27 November 2013

CaseChat Overview and Summary

The parties involved in this case are the Transport Accident Commission (TAC) and the respondent, Hogan. The dispute centres on whether the TAC is obligated to compensate Hogan for the purchase of a quad bike under the Transport Accident Act 1986 (Vic) and the Road Safety Act 1986 (Vic). The matter was heard in the County Court of Victoria.

The court had to determine whether a quad bike is classified as a 'motor vehicle' under the legislation and whether the TAC's authority to fund the purchase of such a vehicle is limited to the provisions of sections 60(3) and (3A) of the Transport Accident Act 1986 (Vic). Additionally, the court needed to assess whether the TAC could fund the purchase of a quad bike as a 'rehabilitation service' under sections 23 and 60(2) of the Act, and whether such a service must be part of a structured program as suggested by Keler v Transport Accident Commission [2002] VCAT 445.

The court examined the definition of 'motor vehicle' and 'rehabilitation service' under the relevant statutes and considered previous cases such as Transport Accident Commission v Serbec [1993] 6 VAR 151 and Transport Accident Commission v Ball [1991] 1 VR 64. It was determined that a quad bike does not fall under the definition of 'motor vehicle' for the purposes of compensation under the Transport Accident Act 1986 (Vic). Furthermore, the court held that the TAC's power to fund such purchases is limited to the provisions of sections 60(3) and (3A). The court also concluded that the TAC does not have the authority to fund the purchase of a quad bike as a rehabilitation service, as it does not fit within the meaning of 'aid', 'appliance' or 'apparatus' under the Act.

The court dismissed Hogan's application for compensation for the purchase of a quad bike. The court held that the TAC does not have the authority to fund such a purchase under the Transport Accident Act 1986 (Vic).

Orders