The Supreme Court of Victoria Court of Appeal has recently passed down its judgement in the case of Connelly v Transport Accident Commission [2024] VSCA 20. The findings hold significance for injured plaintiffs, as they underscore the importance of acknowledging both current and prospective losses in terms of one's abilities and capacities.
Background to the injury
In 2012, Xavier Connelly (‘the plaintiff’ and ‘the applicant’) experienced a significant incident while riding his pushbike, resulting in a fall as he manoeuvred to avoid a motor vehicle. This event led to an injury to his right knee, necessitating surgical intervention in 2013 to repair the anterior cruciate ligament (ACL). It's worth noting that prior to this incident, Connelly had undergone ACL reconstruction following a sporting injury to the same knee in 2004, with the graft from that surgery being compromised in the 2012 accident.
Between 2010 and 2018, Connelly operated a printing business, but transitioned to part-time labouring work alongside a friend in 2018. Unfortunately, due to increasing pain, he ceased this work in 2021.
Commencement of proceedings
In July 2021, the applicant filed a motion in the County Court seeking permission, under section 93(4)(d) of the Transport Accident Act 1986 (‘the TA Act’), to begin legal action for damages due to injuries from the accident. Additionally, the applicant requested an extension of time, as per section 23A of the Limitation of Actions Act 1958 (‘the LOA Act’), to initiate the proposed legal proceedings.
In May 2023, Judge Clayton presided over the County Court hearing regarding the applicant's case. The applicant provided evidence through an affidavit, followed by cross-examination and re-examination. Only the applicant testified orally, while medical evidence was presented in the form of reports and records. In June 2023, Judge Clayton dismissed the proceeding finding that the severity of the right knee injury did not meet the required threshold of being 'very considerable,' as per the precedent set in Humphries v Poljak. Consequently, she concluded that the provisions of section 23A of the LOA Act did not apply, thus ruling out any possibility of granting an extension of time under that section.
Refuting the County Court ruling
Connelly sought leave to appeal Judge Clayton’s entire order based on the following proposed grounds:
- The trial judge misunderstood or failed to consider the entirety of the medical evidence concerning the implications of the applicant's injury, particularly regarding the likelihood of developing post-traumatic arthritis and the need for future medical and surgical intervention.
- The trial judge's reasons for the decision were inadequate, as she did not sufficiently address whether she rejected the medical evidence concerning the potential development of post-traumatic arthritis and the necessity for future medical treatment.
- The applicant contends that, according to the trial judge's own assessment of the injury's consequences, the plaintiff's right knee injury should be classified as a 'serious injury' under section 93(17) of the TAA, and therefore, the judge's conclusion to the contrary was clearly erroneous.
The Court of Appeal decision
In hearing the case on appeal, Beach, Niall JJA, and J Forrest AJA granted the TA Act application. They focused on the consequences for the plaintiff as determined by the trial judge, acknowledging their significance and the duration of their impact on the plaintiff.
Their decision was influenced by the understanding that the right knee injury met the criteria of being 'very considerable.' They emphasised the importance of considering both current and future losses alongside the remaining capacity.
Additionally, they clarified that their decision would remain the same even if the medical evidence only suggested a possibility of the plaintiff's condition worsening and the potential need for future surgery.
Making a TAC claim due to a motor vehicle accident is a complex and often stressful process that is best navigated with expert support. With the experience of our lawyers, you'll be able to focus on your recovery whilst we take care of the rest.
This article was written by Isabella Thomas.
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jacinta Richards.
Principal Lawyer.
- Injury Law, Superannuation, TPD & IP
- 03 9890 3321
- Email Address: j.richards@robinsongill.com.au
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