SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2012 0049 | |
| TRANSPORT ACCIDENT COMMISSION | Applicant |
| v | |
| ZARIF ZEPIC | Respondent |
---
| 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) |
---
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’.
---
| 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
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.
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.
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).
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…
Keep reading for free
Create a free CaseChat account to read Transport Accident Commission v Zepic and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] VSCA 232
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the impairments to Mr. Zepic's cervical and lumbar spine constituted impairments of a single body function, which would be pivotal in determining whether his injuries amounted to a serious injury. Additionally, the court needed to assess the extent of the pain and suffering consequences of the injuries, considering the disabling effect of the pain and the contributions from multiple factors, including a pre-existing injury and a subsequent motor vehicle accident. The court also had to evaluate the reliability of Mr. Zepic's evidence, particularly in light of a psychological overlay, and determine whether it was necessary to disentangle these factors.
In its reasoning, the court found that the decision of the primary judge was not plainly wrong or wholly erroneous. The court concluded that the impairments did not constitute a single body function and that the pain and suffering consequences, despite the claimant's evidence, were not at least very considerable and certainly more than significant or marked. The claimant's evidence was deemed unreliable due to the psychological overlay and other factors. Consequently, the court held that the appeal was allowed and the application for leave to bring common law proceedings was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.