Dunin v Harrison [2002] VSCA 125

5. Mr. Ruskin's argument that s.93(1) of that Act did not apply depended on two steps: first, that the injury for which the respondent was suing the appellant was a result of the appellant's operating on the respondent (as obviously it was), and secondly that the operation was not itself a "transport accident" because it was not an incident "directly" caused by or arising out of the driving of the motor cycle. Mr. Beach, however, was content to accept both these steps, while denying the conclusion. His argument was that the injury for which the respondent sued, albeit the result of the operation, was also a result of the accident on the motor cycle on 5 October, an accident which was, beyond argument, a transport accident. I agree with Mr. Beach. Mr. Ruskin's argument seemed to me to suppose without warrant that if the injury was the result of the operation, then it could not also be a result of the motor cycle accident. I add that at the relevant time, 5 October 1989, the word "directly" appeared in the definition of "transport accident" but not in s.3(3)(c) (and I say nothing about the effect of its subsequent inclusion in s.3[1]).

8. In his careful argument, Mr. Ruskin accepted that one consequence of his argument would be to separate injury sustained at the time of the road accident from injury sustained in the course of subsequent medical treatment. The latter, according to his argument, would not be injury within s.93(1) and so, he accepted, would not be injury for which compensation was payable by the Commission under the statutory scheme. Whatever might be the merit of this if negligence was involved in the medical treatment, it would be most unfortunate in a case where there was no

negligence. Moreover, where negligence is involved, s.104 enables the Commission to have recourse to the negligent third party after paying the compensation which is otherwise due under the statute. Both Mr. Ruskin and Mr. Beach accepted that in a case like the present, if the Commission was bound to deliver compensation according to the statute for the consequences of the injury sustained in the operation, the Commission would have the right to proceed under s.104 if negligence could be established against the doctor. That result is surely more consistent with the scheme than the alternative suggested by Mr. Ruskin.

13. On 5 October 1989 the socket of the respondent's right thigh bone was fractured in a motor cycle accident. In an action in the County Court the respondent claimed damages for injury he alleged that he sustained as a result of negligent medical treatment administered to him in respect of the fracture by the appellant, an orthopaedic surgeon. The appellant fixed the socket with a plate and screws. The respondent alleged that part of the thread of one of the screws was under the respondent's articular cartilage, causing him pain and discomfort.

16. In his defence the appellant pleaded that the proceeding was one in respect of an injury which was the result of a transport accident within the meaning of s.93(1) of the Transport Accident Act 1986 ("the Act"). Section 93(1) of the Act provided:

"(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section."

At the time the respondent fell from his motor cycle the term "transport accident" was defined in s.3 of the Act as meaning: "[A]n incident directly caused by, or directly arising out of, the driving of a ... motor vehicle, ...." An injury was the result of a transport accident if it was caused by or arose out of a transport accident.[2]

21. 6 The appellant contended that the action was barred because there had been no determination of the degree of impairment of the respondent by the Transport Accident Commission ("the Commission") as required by s.93(2) and the injury had not been demonstrated to be a "serious injury" in the manner required by the section.

24. The question whether that plea constituted a valid defence of the claim was set down for hearing as an issue to be determined before the trial of the proceeding. The respondent contended that although the fracture was caused in a transport accident in respect of which he received compensation under the Act and the Act's requirements as to assessment by the Commission and determination of whether the injury was serious had not been met, nevertheless he was entitled to bring the proceeding because the injury which he sustained at the hands of the appellant was not "a result of a transport accident".

27. The judge who tried the preliminary issue held that the respondent's injury at the hands of the appellant was not the result of a transport accident. He said he noted "that the injury in respect of which the plaintiff sues cannot be said the result of an incident directly caused by the driving of the plaintiff's motor vehicle." and continued:

"The driving of the motor cycle is a causa sine qua there would have been no need for the defendant to operate, but in no other way is the driving of the cycle causally connected with the injury sued upon. The injury sued is a result of an incident directly caused by the inappropriate placing of the relevant screw, not the driving of the motor cycle."

31. In my opinion this reasoning exhibits an impermissible conflation of the prohibition contained in s.93(1) of suit in respect of injury the result of a transport accident and the definition of "transport accident" contained in s.3. At the time of this accident the Act did not require that the injury be "directly" caused by the driving of the motor cycle.[3] After 1988 the accident was to be one caused by the driving of the motor cycle rather than its use.[4] The injury, on the other hand, was to be a result of the transport accident. The enquiries and the criteria to determine the existence of a transport accident and whether injury resulted from such an accident are discrete.

34. A like question in relation to the Accident Compensation Act 1985 was determined by the Court of Appeal in Kidman v. Sefa[5]. In that case the plaintiff injured her wrist at work. She underwent surgery during which the surgeon unintentionally severed a portion of a nerve, worsening her condition. The plaintiff sued her employer for damages. Section 135(1) of the Accident Compensation Act barred a worker from recovering any damages in respect of pecuniary loss "in respect of an injury arising out of or in the course of employment". The Court held that the injury resulting from the surgeon's negligence was an injury arising out of or in the course of employment so as to fall within the general prohibition on damages for pecuniary loss contained in s.135(1). Citing, inter alia, the decision of the High Court in Mahony v. J. Kruschich (Demolitions) Pty. Ltd.[6], Brooking, J., with whom the other members of the court agreed, said:

"[A]ssuming there has been no break in the chain of causation by a novus actus interveniens, where an injury has been exacerbated by medical treatment, the exacerbation may be viewed, not merely as a consequence of the original injury, but as itself an injury arising out of or in the course of employment."[7]

38. In Mahony the High Court said that the common law position, that "Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment may not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition", was "consistent with the view taken in workers compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident ...."[8] Among the authorities cited by the court was a statement of Dixon, J. in Lindeman Ltd. v. Colvin[9] as follows:

"These decisions show that, if an injury resulting from an accident arising out of and in the course of the employment is aggravated by medical treatment or if the surgical procedures adopted to remedy or alleviate the injury cause a secondary traumatic or pathological condition or death, the total condition is to be attributed to the accident, that is so long as the workman acted reasonably."

The decisions to which Dixon, J. referred turned upon the question whether injury or death was caused by or resulted from an accident which took place in the course of employment.

43. In the present case it was not alleged that the plaintiff acted other than reasonably in seeking and accepting the medical treatment administered by the appellant; nor was it claimed that that treatment was "inexcusably bad" or "completely outside the bounds of what any reputable medical practitioner might prescribe" or "so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury" or "extravagant from the point of view of a medical practice or hospital routine", expressions referred to by the High Court in Mahony.[10] Although the phrase "arising out of" has a wider connotation than the words "result of" and "caused by"[11], the distinction need not be pursued. In the present case I am satisfied that the respondent's injury at the hands of the appellant was a result of the transport accident in the sense that it arose out of or was caused by the accident.

46. For the foregoing reasons I would allow the appeal, set aside the judgment and orders of the County Court judge. The parties agree that in the event that the

appeal succeeds, the appropriate order in lieu of the orders made by the trial judge is that the respondent's action be dismissed.

51. I agree that the appeal should be allowed for the reasons advanced by Buchanan, J.A. and that the proceeding should be disposed of in the manner proposed by his Honour.

[1] By the Transport Accident (General Amendment) Act 1984 s.5(4), with effect from 1 January 1995.

[3] The word "directly" was added to s.3(3) by amendment subsequently: see Act No. 84 of 1994.

[4] The definition of a transport accident as an incident directly caused by or arising out of the driving of a motor vehicle was introduced by Act No. 32 of 1988 to replace a definition of transport accident tied to the use of a motor vehicle.

[5] [1996] VicRp 8; [1996] 1 V.R. 86.

[6] [1985] HCA 37; (1985) 156 C.L.R. 522.

[9] [1946] HCA 35; (1946) 74 C.L.R. 313 at 321.

[10] Above at 530 per Gibbs, C.J., Mason, Wilson, Brennan and Dawson, JJ.

[11] See Lamont v. Motor Accident Board [1983] VicRp 9; [1983] 1 V.R. 88 at 95 per Tadgell, J.