Transport Accident Commission v Serwylo

[2011] VSCA 305

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0130 

TRANSPORT ACCIDENT COMMISSION
	Applicant
v
MAARA SERWYLO	Respondent

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JUDGES:	ASHLEY and HARPER JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2011
DATE OF JUDGMENT:	10 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 305
JUDGMENT APPEALED FROM:	[2010] VSC 421 (Kaye J)

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Accident compensation – Transport accident – Lumbo-sacral spinal impairment – AMA Guides – construction issue – Application for leave to appeal from decision of judge of Trial Division – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M F Wheelahan SC with Mr D Masel	Solicitor to the Transport Accident Commission
For the Respondent	Dr I R L Freckelton SC with Mr N R Dubrow	Slater & Gordon

ASHLEY JA:

1. This is the judgment of the Court.

1. By s 17A(3A)(a) of the Supreme Court Act 1986, appeal in this matter is only possible on grant of leave.  We refuse leave.  In our opinion, despite the comprehensive and very careful submissions advanced by senior counsel for the applicant, the decision sought to be appealed has not been shown to be wrong or at least attended by sufficient doubt as to justify grant of leave.[1]

   [1]Counsel for the applicant accepted the applicability of what he described as ‘the Niemann test’ (Niemann v Electronic Industries Ltd [1978] VR 431), the relevance of which, in the context of an application for leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, was discussed by JD Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 335-337 [8]-[15]. See also, Myers v Medical Practitioners Board (2007) 18 VR 48, 55-56 [28]-[29] (Warren CJ). Neither of those cases involved an application for leave to appeal under s 17A(3A)(a) of the Supreme Court Act1986, but each is indicative of the correct approach to consideration of such an application.

1. We consider that the judge’s full and careful reasons[2] - the decisive aspects of which,[3] counsel for the applicant accepted, were valid points to weigh in determination of the competing constructions – express and explain the preferable construction of that part of Chapter 3 of the AMA Guides which was in issue.  It is, we add, a measure of the unsatisfactory nature of the document, and of the difficulty faced by the Tribunal and then his Honour, that, as the medical opinions demonstrated, not even doctors, by whom and for whom the Guides were written, could agree as to the proper meaning of DRE Lumbosacral Category IV.  Mr Shannon, whose opinion – relied upon by the applicant – differed from the opinions of Messrs Doig and Moran, went so far as to say, in viva voce evidence, that he thought the issue ‘should be referred to the spine group[4] for guidance’, and that he was ‘still of that view’.

   [2]Transport Accident Commission v Serwylo [2010] VSC 421.

   [3]Ibid [29]-[34].

   [4]We were told that this is a group of doctors the members of which teach a training course approved by the Minister respecting a particular Chapter of the Guides – as to which s 46A(2)(b) of the Act and Gillat v Transport Accident Commission (2003) 38 MVR 463.

1. We further consider that the medical opinions, in which we include the viva voce evidence given by Messrs Doig, Moran and Shannon, supported a conclusion, even assuming the applicant’s construction argument to be correct, that the respondent suffered multilevel spine segment structural compromise – a concept unattended, in the language of Category IV of DRE Lumbosacral Spine Impairment, by the characterisations ‘significant’ or ‘very significant’.

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