Asquith v Transport Accident Comm’n (2014) H&FLR 2014-52

Jessica Asquith v Transport Accident Commission (2014) H&FLR 2014-52

County Court of Victoria

22 July 2014

Coram: Judge Macnamara

Appearing for the Plaintiff: Ms Jacinta Forbes (instructed by Riordan Legal Pty Ltd)
Appearing for the Defendant: Mr Paul Jens and Ms Sasha Manova (instructed by the Solicitor to the Transport Accident Commission)

Catchwords: Australia – Victoria – transport accident – serious injury – athlete – cycling.

Facts:  The plaintiff suffered injuries including vertebral fractures* in a road accident on 29 January 2011.  She applied to the Court for a finding that she had sustained a ‘serious injury’, so to be entitled to sue and claim common law damages for her injuries from the other driver.  Section 93(17) of the Transport Accident Act 1986 (Vic) relevantly defines a ‘serious injury’ as “serious long-term impairment or loss of a body function”

It was found that her capacity to engage in her preferred employment had been limited but was substantially intact.  Concerning other consequences, the plaintiff’s evidence was that she had been a keen athlete prior to the accident including engaging in cycling long distances.  It was accepted by the court that her injuries would cause pain and restrictions which would prevent her engaging in outdoor recreation with the same freedom as before the accident.  However, she had retained the capacity to engage to a degree in horse riding, jet skiing and mountain biking.

Held: Dismissing the application, that –

1.  Whether the plaintiff satisfies the serious injury test must be assessed at the date of the hearing.

Phelan v Transport Accident Commission [2013] VSCA 306, followed.

2.  For an injury to be classed as ‘serious’ the impairment or loss of function suffered  must be both serious and long term.  To be considered serious, the consequences must be serious for the particular applicant.  The question is whether the injury, when compared with other cases, is more than significant or marked, and at least very considerable.  The Court considered that the plaintiff’s injuries were marked, but not very considerable.

Humphries v Poljak [1992] 2 VR 129, followed.


The Court’s judgment is available here.


* Cf Harsted v Prior Lake-Savage School District (2013) H&FLR 2014-51

History, Reality & Scotland (#indyref)

As I type this, ABC News24 is giving an update on the voting – now underway – in the Scottish independence referendum. It seems the “no” vote is ahead.

Whatever the result, the argument will continue. If the referendum fails, the yes camp will forever claim ‘we wuz robbed’. If it succeeds, the no camp will spend a few years saying, Cassandra-like, ‘you’ll be sorry’.

The Scottish referendum seems like a good example of a much greater problem in modern thought, which is the desire to believe that the past was – and the present is – thus-and-so because one says it was (or is).

Perhaps no country has a more active relationship with its own past than the United States. On one analysis, that country’s founding principles and founding identities are readily identifiable, more immutable and less open to multiple readings as words cast in stone. This ramifications of this certainty in the present are its analogue of certainty about what American values are and preferences for particular constitutional analyses. It also has its analogue in the somewhat tortured response to the suggestion that there are multiple ways of making sense of the past and in the discomfiture with the reality that even honourable leaders may sometimes need to act extralegally.

What does this tell us about the Scottish referendum? The most optimistic readings of an independent Scotland’s economic future are still not encouraging. And this future is pursued in the hope, not only of living out a fictional past, but of forcing a great many other people to do so as well. And in contrast to the American experience, where dominant knowledges of the past are conflicted, malleable, and up for grabs, it is hard to imagine an independent Scotland accepting much critique at any level from a conservative or Unionist reading of the past.

Perhaps this tells us something about the outcome to be desired in Scotland: that it will be allowed to cling on to a make-believe past and a wishful-thinking future, in a small, obscure and windswept territory on the fringe of Europe, as far as possible from the levers of real power.

It is hard to think of a sadder epitaph for a proud nation.

On ‘disciplining’ children

In a recent case – State v Victor and Victor – a Louisiana court convicted a man of murder for beating his son to death and his wife of manslaughter for failing to prevent it.

It’s interesting to compare this case with Jordan Lebeau’s essay in the Boston Globe on why African American families may tend, on apparently rational grounds, to retain corporal punishment for their children.

It seems to me that a practice can be justified if it retains a rational justification (cf this article from the Pacific Legal Foundation), or at least a non-insane justification. But when that practice will inevitably throw up at least one or two cases that end in death for one party and imprisonment for another? That seems to me too high a price.