Watapaldeniya v TAC - [2022] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0073

NIMESH WATAPALDENIYA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY JJA and O’MEARA AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 April 2022
DATE OF JUDGMENT:	12 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 59
JUDGMENT APPEALED FROM:	[2021] VCC 714 (Judge Clayton)

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TRANSPORT ACCIDENT COMPENSATION – Transport Accident Act 1986, s 93 – Serious injury application – Transport accident – Loss of earning capacity – Pain and suffering – Adverse credit findings – Finding that consequences not ‘very considerable’ – Whether reasons adequate – Whether failure to consider applicant’s young age – Humphries v Poljak (1991) 14 MVR 1, discussed – Thapa v Transport Accident Commission (2021) 97 MVR 268, discussed – Hunter v Transport Accident Commission [2021] VSCA 239, discussed – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, discussed – Nichols v Robinson (2001) 33 MVR 83, discussed – Hooley v Transport Accident Commission (2019) 90 MVR 407, distinguished – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R H Stanley and Mr O T Lesage	Patrick Robinson & Co
For the Respondent	Mr J Ruskin QC with Ms R L Kaye	Solicitor for Transport Accident Commission

BEACH JA
KENNEDY JA
O’MEARA AJA:

On 16 October 2019 the applicant applied under s 93(4)(d) of the Transport Accident Act 1986 (the ‘Act’) for leave to bring proceedings for the recovery of damages for a shoulder injury that he sustained in a transport accident that occurred on 25 September 2016.

The applicant claimed that the impairment of his right shoulder was a ‘serious injury’ pursuant to part (a) of the definition of ‘serious injury’ under s 93(17) of the Act. He also claimed that he suffered psychological consequences as a result of the physical injury (though he did not claim the psychological condition as an impairment in its own right).

On 7 June 2021, a County Court judge dismissed this application, after making extensive adverse credit findings about the applicant.

The applicant now seeks leave to appeal from that decision and advances the following two proposed grounds of appeal:

(i) The primary judge erred in law by failing to provide reasons that disclosed an intelligible path of reasoning for her decision.

(ii) The primary judge erred in law by failing to consider that because of the applicant’s young age, the pain and suffering consequences which she found to be permanent, will likely be experienced for a lengthy period.

For the following reasons, we have determined that, while leave to appeal will be granted, the appeal will be dismissed.

Evidence
Factual Background

The applicant was born in Sri Lanka on 29 March 1989. In 2012, when aged 23, he came to Melbourne on a student visa to study a bachelor’s degree in Information and Communication Technology at Swinburne University. Whilst studying he worked at Coles in Malvern stacking shelves, and at a…

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.

Continue reading Watapaldeniya v TAC

Details

AGLC: Watapaldeniya v TAC [2022] VSCA 59
Case: [2022] VSCA 59
Decision Date: 12 April 2022

CaseChat Overview and Summary

In the Court of Appeal, Watapaldeniya, the applicant, appealed against a decision of the Transport Accident Commission (TAC), which found that the injuries sustained in a motor vehicle accident did not result in a very considerable loss of earning capacity or pain and suffering. The TAC's decision was rendered pursuant to section 93 of the Transport Accident Act 1986, which mandates a determination on whether the injuries sustained by the applicant were serious enough to warrant compensation. The applicant contested the TAC's findings, arguing that the decision-making process was flawed and that the TAC failed to adequately consider his young age and the long-term impact of his injuries.

The central legal issue before the court was whether the TAC had provided sufficient reasons for its decision, and if it had adequately considered the applicant's age and the potential long-term effects of his injuries. The applicant argued that the TAC's decision was inadequate as it failed to properly account for the ongoing and future impact of the injuries, particularly given his youth. The TAC, on the other hand, maintained that it had considered all relevant factors and provided adequate reasons for its decision. The court needed to determine whether the TAC's findings were supported by the evidence and whether the decision-making process complied with legal standards.

The court found that the TAC's decision was inadequate because it did not sufficiently explain why the consequences of the applicant's injuries were not very considerable. The court noted that the TAC had not considered the long-term impact of the injuries on the applicant's earning capacity and quality of life, particularly in light of his young age. The court held that the TAC had failed to provide adequate reasons for its decision, as it did not address the potential future impact of the injuries, which is a crucial factor in determining the seriousness of an injury under the Transport Accident Act 1986. The court further held that the TAC's failure to consider the applicant's age was a significant omission. As a result, the court granted the applicant leave to appeal and dismissed the TAC's decision, remitting the matter back to the TAC for reconsideration.

Orders