Transport Accident Commission v Zepic

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0049
TRANSPORT ACCIDENT COMMISSION	Applicant
v
ZARIF ZEPIC	Respondent

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JUDGES	MAXWELL P, TATE JA and GARDE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2013
DATE OF JUDGMENT	4 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 232
JUDGMENT APPEALED FROM	Zepic v Transport Accident Commission [2012] VCC 305 (Judge Saccardo)

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ACCIDENT COMPENSATION – Transport accident – Grant of leave to bring common law proceedings – Impairment of cervical spine and lumbar spine – Whether impairment of single ‘body function’ – Whether ‘serious injury’ – ‘Pain and suffering consequences’ of injury – Whether ‘at least … very considerable and certainly more than significant or marked’ – Disabling effect of pain – Multiple contributors – Pre-existing injury – Subsequent motor vehicle accident – Claimant’s evidence unreliable – Psychological overlay – Need to ‘disentangle’ – Whether decision of primary judge ‘plainly wrong or wholly erroneous’ – Conclusion not open – Appeal allowed – Application for leave refused – Transport Accident Act 1986 (Vic) s 93.

WORDS AND PHRASES – ‘body function’, ‘impairment of a body function’.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R P Gorton QC with Ms R L Kaye	Wisewould Mahony
For the Respondent	Mr S A O’Meara SC with Ms A M Malpas	Victorian Compensation Lawyers

MAXWELL P:

Summary

1. The respondent, Mr Zepic, was injured in a motor vehicle accident in March 2008 (the ‘2008 accident’). He was then 70 years of age. He subsequently applied, under s 93(4)(d) of the Transport Accident Act 1986 (Vic), for leave to bring an action at common law to recover damages for the injuries he had sustained.

1. The application relied on three ‘predominant injuries’ — being injuries respectively to his cervical spine (‘CS’), lumbar spine (‘LS’) and ‘right upper extremity, in particular the right shoulder’.[1]  The injuries to the CS and to the right shoulder were said to be ‘new’ injuries;  the injury to the LS was said to be an ‘aggravation’ injury, that is, an aggravation of an existing injury.

   [1]Mr Zepic’s ‘Statement by the applicant in support of serious injury certificate’ (‘Statement’) also relied on injuries to his left shoulder and to both legs.

1. Mr Zepic had to establish that, as a result of the 2008 accident, he had suffered ‘serious long-term impairment of a body function’.[2]  Mr Zepic contended — and the judge accepted — that the spine was a single body function, so that the pain and suffering consequences of the CS injury and the LS injury could be aggregated. 

   [2]Transport Accident Act 1986 (Vic) s 93(17)(a).

1. The question for determination was whether the pain and suffering consequences of the impairment of spinal function satisfied the test for serious injury.  A number of particular features of the case combined to make the judge’s task exceptionally difficult.  Specifically:

(a)       his Honour found that Mr Zepic was an unreliable witness, who had exaggerated the consequences of the 2008 accident both under cross-examination and in what…