Transport Accident Commission v Stephens - [2018] VSC 667

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2017 04212

TRANSPORT ACCIDENT COMMISSION	Plaintiff
v
MARIE STEPHENS	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Geelong
DATE OF HEARING:	8 and 9 August 2018
DATE OF JUDGMENT:	9 November 2018
CASE MAY BE CITED AS:	Transport Accident Commission v Stephens
MEDIUM NEUTRAL CITATION:	[2018] VSC 667

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ACCIDENT COMPENSATION – Negligence – Application by plaintiff for indemnity from defendant – Payments made to driver of motorcycle who sustained serious injuries in collision with defendant’s motor vehicle – Defendant 90 per cent liable for collision – Transport Accident Act 1986 s 104.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gorton QC with Ms K Gladman	Wisewould Mahony
For the Defendant	Mr B McTaggart SC with Ms F Ryan	Lander & Rogers

HIS HONOUR:

Mr Quentin Blackmore was born on 18 July 1968 and as at 8 February 2013 was 44 years old. On that day, at approximately 11.30 am, he was riding his motorbike in a southerly direction along the Midland Highway south of Perth, Tasmania. He was with his friend, Ivan Coyle. As Mr Blackmore was passing through the town of Perth, he took up a position behind a Toyota Corolla being driven by the defendant, travelling in the same direction. The defendant was accompanied by her husband as a front seat passenger.

Between the intersections of Old Bridge Road and Eskleigh Nursing Home Road (‘ENH Road’), Mr Blackmore commenced to overtake the defendant, pulling out into the right-hand lane as he did so. At the point Mr Blackmore commenced to overtake the defendant, broken white lines, permitting him to overtake, divided the Midland Highway. A speed limit of 60 km/h applied.

Prior to the collision the defendant turned right off Midland Highway intending to enter ENH Road. As she did so, the right front of her car collided with Mr Blackmore’s motorcycle as Mr Blackmore was attempting to overtake the defendant’s vehicle. Mr Blackmore was thrown onto the road and sustained serious injuries, including complete paraplegia.

Mr Blackmore lodged a claim for compensation in respect of his injuries and resulting incapacity under the Transport Accident Act 1986 (‘the Act’). The claim was accepted and the plaintiff has paid, and continues to pay, compensation to Mr Blackmore. The plaintiff seeks indemnity from the defendant pursuant to s 104 of the Act. There is no issue that the compensation paid has been paid in accordance with the Act.

None of the matters set out above are in contention. However, the precise movements of the vehicles in the period shortly prior to the collision are in dispute. In particular, it is not agreed:

(i) When the defendant first indicated her turn. The plaintiff contends that the defendant did not indicate until Mr Blackmore was alongside her vehicle, and that she indicated and commenced to turn at essentially the same time. The defendant contends that she indicated well prior to…

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: [2018] VSC 667
Decision Date: 9 November 2018

CaseChat Overview and Summary

The plaintiff in this case, the Transport Accident Commission, sought indemnity from the defendant, Mr. Stephens, who was found to be 90% liable for a collision between his vehicle and a motorcycle. The motorcyclist had sustained serious injuries and received payments for compensation from the plaintiff. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that, under section 104 of the Transport Accident Act 1986, Mr. Stephens should be liable for the payments made to the motorcyclist.

The primary legal issue before the court was whether Mr. Stephens, who was found to be significantly at fault for the accident, could be held liable for indemnity to the plaintiff for the compensation payments made to the injured motorcyclist. The court had to interpret section 104 of the Transport Accident Act 1986 and determine whether it provided a basis for such a claim.

The court found that section 104 of the Transport Accident Act 1986 does indeed impose a liability on a party who is found to be significantly at fault in an accident to compensate the plaintiff for payments made to the injured party. The court held that Mr. Stephens, being 90% liable for the collision, was subject to this provision. The court concluded that the Transport Accident Commission was entitled to seek indemnity from Mr. Stephens for the payments made to the injured motorcyclist.

The final orders of the court were that Mr. Stephens was liable to compensate the plaintiff for the payments made to the motorcyclist, and the exact amount was to be determined in further proceedings.

Orders