Kovacic v TAC

(2016) 76 MVR 82; [2016] VSCA 139

Victorian Court of Appeal

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Interrogate

Catchwords

1. Accident Compensation
2. › Transport accident
3. › Serious injury
4. › Application for leave to commence common law proceedings
5. › Serious long-term impairment or loss of body function
6. › Whether consequences of injury 'very considerable'
7. › Whether primary judge applied wrong test by focusing on loss of social, domestic and recreational activities rather than all consequences including pain and suffering
8. › Transport Accident Act 1986 (Vic), s 93, s 93(17)(a)
1. Appeal
2. › Application for leave to appeal
3. › Consent orders for remittal
4. › Whether Court of Appeal must be independently satisfied judgment below is wrong before making consent orders
5. › Resource implications for administration of justice
1. Appeal
2. › Adequacy of reasons
3. › Whether reasons disclosed findings and path of reasoning
4. › Failure to explain rejection of accepted consequences of injury

Quick Take

When assessing whether an injury satisfies the 'serious injury' threshold under s 93(17)(a) of the Transport Accident Act 1986, a judge must consider all relevant consequences of the injury — including pain and suffering — against the 'very considerable' test from Humphries v Poljak, and cannot confine the assessment to what the applicant has lost by way of social, domestic and recreational activities. A finding that the applicant exaggerated symptoms does not relieve the judge of the obligation to deal with the consequences accepted on the evidence.