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.

Judgment

The Court’s judgment is available here.

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