Transport Accident Commission v Salcedo - [2003] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3741 of 2002
No. 3739 of 2003

TRANSPORT ACCIDENT COMMISSION
	Appellant
v.
ROCCA SALCEDO	Respondent

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JUDGES:	PHILLIPS, BATT and BUCHANAN JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2003
DATE OF JUDGMENT:	23 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 226

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Accident compensation – Transport accident – Victim a paraplegic – Liability of Commission for the reasonable costs of “disability services” – Meaning of “disability services” – Victim’s mother providing “attendant care” to victim while in hospital – Whether the provision of such care is a “disability service” – Rental costs of permanent accommodation likely to be increased due to victim’s disability – Whether financial assistance for such increased rental costs is a “disability service” – Meaning of “accommodation support” – Transport Accident Act 1986 ss.3(1), 23(1), 60(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. C.M. Maxwell, Q.C. with Mr. I.A. Miller	TAC Law Pty Ltd
For the Respondent	Mr. P.G. Nash Q.C. with Mr. D.C. Pulling	Slater & Gordon

PHILLIPS, J.A.:

The Court has before it two appeals from the Victorian Civil and Administrative Tribunal in related matters, both of them concerned with the obligation of the Transport Accident Commission to meet the costs of services provided to a transport accident victim under s.60(2)(a) of the Transport Accident Act 1986 (“the Act”). The first challenges a decision of the Vice President that the Commission is liable for certain services performed for the respondent by her mother while the respondent was in hospital after a tragic transport accident which left her a paraplegic; and the second challenges his Honour’s subsequent decision that the Commission is liable for the increased cost of the respondent’s renting long-term accommodation suitable to her post-accident needs, when the respondent finally moves from the transitional accommodation in which she is presently housed. As will be seen, I think that the first appeal should fail, but the second succeed.

Background facts

On 21 October 2001 Rocca Salcedo, now the respondent, was a pedestrian when she was struck and injured by a motor vehicle. She was 25 years old at the time and had but recently arrived in Australia from her homeland, Colombia, where she was a qualified legal practitioner. She was in Australia for the purpose of complete a course in English studies before returning to her home in Bogota. At the time of the accident, she was residing in host accommodation organised through Home Stay Australia, for which she was paying $180 each week ($100 for room rental, $20 for utilities and $60 for meals).

Following the accident, the respondent was taken by ambulance to the Austin Hospital. She was subsequently discharged to the Royal Talbot Rehabilitation Hospital where she remained as an in-patient until 5 December 2002. Meanwhile the respondent’s mother had travelled from Bogota to be with her daughter. Mrs. Salcedo was a frequent visitor to her daughter in the hospital and, when there, she would assist in a variety of ways,…

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: [2003] VSCA 226
Decision Date: 23 December 2003

CaseChat Overview and Summary

The Transport Accident Commission was the defendant in this case brought by Salcedo, the plaintiff. The plaintiff sought to recover the reasonable costs of disability services that he incurred as a result of a transport accident for which the defendant was responsible. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The central issue in the case was the interpretation of certain terms in the Transport Accident Act 1986, specifically "disability services" and "accommodation support." The plaintiff argued that the costs associated with his mother providing attendant care while he was in hospital and the anticipated increase in rental costs for his permanent accommodation due to his disability should be considered disability services and accommodation support, respectively, for which the defendant was liable.

The court considered the statutory language and the purpose of the Act, which was to provide comprehensive compensation for victims of transport accidents. The court held that the provision of attendant care by the plaintiff's mother while he was in hospital did not constitute a disability service as it was provided out of familial duty and affection, not as a professional service. Furthermore, the court found that the anticipated increase in rental costs due to the plaintiff's disability did not qualify as accommodation support, as it was not a service provided to assist the plaintiff in his disability but rather a consequence of his disability on his living arrangements. The court's interpretation of the statutory terms was consistent with the overall purpose of the Act, which was to compensate for the actual costs incurred due to the disability resulting from the accident, not the broader impacts of the disability on the victim's life.

As a result of the court's reasoning, the plaintiff's claim for the costs of attendant care provided by his mother and for the anticipated increase in rental costs was dismissed. The court's decision clarified the scope of disability services and accommodation support under the Transport Accident Act 1986, providing guidance for future claims. The final orders of the court were that the plaintiff's claim was dismissed with costs to be paid by the plaintiff.

Orders