By Stuart Eustice, Partner, Zoe Vlahogiannis, Lawyer and Emily McDougall, Law Graduate

Popal v Transport Accident Commission [2023] VSCA 222

Factual Background

On 2 February 2015, the Applicant was driving a motor vehicle when a nearby vehicle struck a power pole, causing the pole to fall onto, and crush, the roof of his vehicle (accident). As a result of the accident, the Applicant suffered injury to his lumbar spine.

The Applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a common law proceeding claiming damages for his injuries. The Applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’). The Applicant had pre-existing symptoms in his lumbar spine, and claimed his injury was an aggravation of pre-existing lumbar degenerative disease. The body function relied upon was the function of the spine.

The Judge dismissed the application and held the Applicant failed to establish the impairment consequences arising from any compensable injury satisfied the test for serious injury on the basis the Applicant was not a credible witness and that he failed to adduce appropriate evidence from his treating medical practitioners.

Legal Issue

The Applicant sought leave to appeal against the order dismissing his application based on the fact:

1. the Trial Judge erred in relation to the facts; and
2. the Trial Judge’s reasons were unreasonable based on the evidence.

Court of Appeal Decision

The Court stated that the Trial Judge was correct to make an assessment as to the Applicant’s reliability and credibility based upon the contents of his affidavit and oral evidence. It was noted:

1. the Applicant’s evidence was devoid of accurate and up to date medical material;
2. the Applicant failed to adequately disclose his pre-existing medical conditions, and in particular his lower back pain; and
3. he made attempts to disavow the accuracy of multiple contemporaneous medical entries made by his general practitioners prior to the accident.

It was further considered the evidence of his pre-existing health “pointed squarely to a man who prior to the accident was in poor health and was now engaged in florid exaggeration of the effects of that accident”.

The Court of Appeal concluded the Trial Judge’s decision was correct and no error had been made. The Applicant’s leave to appeal was refused.