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

DPP v Ryan (2007) H&FLR 2014-49

Director of Public Prosecutions v Stephen Newton Ryan (2007) H&FLR 2014-49

County Court of Victoria (Australia)

c. 20 March 2007

Coram: Judge McInerney

Appearing for the Prosecution: Carolyn Burnside (instructed by the Office of Public Prosecutions)
Appearing for the Defendant: Brian Bourke (instructors not known)

Catchwords: Australia – Victoria – soccer – altercation between spectators -serious injury – assault – sentencing considerations

Facts: On 29 June 2003 the accused attended an under-11s soccer match at Caloola Reserve, Oakleigh, in which his son was playing. It was alleged that he had been telling players from his son’s team to kick and punch a player on the opposing team after a penalty shot was awarded. The victim – the father of one of the players on the opposing team – remonstrated with him. In the ensuing altercation the victim grabbed the accused’s umbrella and suffered a hand injury when it was yanked away. When the victim turned to walk away, the accused struck him from behind with the umbrella, causing a spoke to become lodged in his back.

The accused was charged with intentionally or recklessly causing serious injury*. He pleaded not guilty at a committal hearing in the Melbourne Magistrates Court and was committed to stand trial in the County Court: McLean v Ryan (2006), The Age, 15 September 2006. At trial he pleaded guilty to assault**.

Held: The Court accepted that the offence had been committed in the heat of the moment and that the accused had allowed himself to be overcome by circumstances. However, His Honour also considered that it was becoming too common for parents at soccer matches to lose their self-control, and that neither the accused nor victim had brought credit to themselves and had set a bad example to the children present.

A conviction was recorded against the accused and a fine of $3,000.00 imposed.

Judgment

No written judgment has been made available. The report has been prepared based on newspaper accounts in The Age of 1 July 2003  and 15 September 2006 and the Herald Sun of 14 September 2006 and 21 March 2007.

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* Crimes Act 1958 (Vic.), §16 and §17.
** Summary Offences Act 1966 (Vic.), §23