Kessete v Transport Accident Commission [2025] VCAT 974 | Case summary

Kessete v Transport Accident Commission [2025] VCAT 974 | Case summary | Zoe

This application was commenced by solicitors on the applicant's behalf on 23 October 2012 under another proceeding number at the Tribunal. It is an application for review of the Transport Accident Commission (TAC)'s decision of 7 November 2011, refusing to make payments for loss of earnings or for loss of earning capacity. This relates to a motor vehicle accident on 14 March 2007. The relevant period under the Transport Accident Act 1986 (Vic) (the Act) for loss of earnings is 14 March 2007 to 13 September 2008. For loss of earning capacity, it is from 14 September 2008 to 13 March 2010.
This claim has a long history and, in fact, it was dormant for a number of years. It was then reactivated. The applicant has had at least five or six firms of solicitors acting for him in relation to different matters over the period since the relevant motor vehicle accident on 14 March 2007.
I note he has, unfortunately, suffered three motor vehicle accidents and two workplace injuries during the period 2004 to 2017. His most recently acting solicitors, BTT Lawyers, ceased to act for him in or around September 2024, 12 months ago. Mr Kessete indicated that he would conduct this case himself. It was set down in January 2025 for hearing today, for three days.
For Mr Kessete to succeed, it is necessary for the Tribunal to be satisfied that he has suffered actual loss of earnings, or loss of earning capacity during the two applicable 18-month periods. It needs to be satisfied, in effect, that he did not receive wage payments because he had to take days off due to his 2007 motor vehicle accident.
That requires, in practical terms, two things:
1. For it to be demonstrated that he took leave on particular days; and
2. For it to be demonstrated that the leave that he took on those days was due to his incapacity arising from the 2007 motor vehicle accident.
In regard to the first issue, the evidence before the Tribunal shows that Mr Kessete did take a number of days leave in the relevant period. These were either sick days or annual leave days.
Turning to the second question. Firstly, with regard to his sick days, there are some medical certificates which coincide with sick leave days taken during the relevant period. There are five such occasions during the relevant period, one day each, where there is a certificate from a doctor for a day when the employment records show that sick leave was taken.
None of the sick leave certificates or the notations in the General Practitioner's notes indicate on any of these occasions, specifically and unequivocally, that the sick leave taken was due to the 2007 motor vehicle accident. As opposed to (a), one of his other injuries from a prior accident; or (b), an illness such as a cough, cold or - to give one example which appears in the GP's notes - Bell's Palsy.
Turning to the annual leave days, there are no medical certificates and no notations in the General Practitioner's treating notes which would indicate that leave was due to incapacity from the 2007 motor vehicle accident.
So that leaves us with the five certificates which relate to the days taken as sick leave. As I said, it is quite dubious whether the Tribunal could properly conclude that these are sufficient to satisfy it that those sick days were, in fact, due to the 2007 motor vehicle accident.
But even if it did, as discussed during the hearing, the applicant is not entitled to payment for loss of earnings in relation to the first five days where there is a proved loss of earnings due to the motor vehicle accident, s43(1) of the Act. So those five days, even if they were accepted, do not entitle the applicant to compensation, unfortunately.
Aside from this there is, of course, no report from a doctor such as Mr Kessete's General Practitioner, expressing opinion in general or overarching terms that he was unable to work or had no or reduced capacity to work, due to the 2007 motor vehicle accident, on any occasions during the relevant period of March 2007 to March 2010.
Indeed, what medical evidence there is - and what other evidence there is, such as that from his employer which is much more contemporaneous than any evidence that could be given now - runs against Mr Kessete in that regard.
In addition to all this, I note that Mr Valiotis pointed out in his oral submissions that the applicant was, in fact, paid for the days he took sick leave. So he himself has not suffered any loss of wages. Under the scheme, such payments would go to his employer, not to him. He has not worked for that employer for seven or eight years, since 2017, and no longer has contact with that employer, in any event.
For all these reasons, I determine that the TAC's decisions of 7 November 2011, refusing to make payments for loss of earnings and loss of earning capacity, are affirmed.
Finally, in all the circumstances of this case, including the disadvantages faced by Mr Kessete as a self-represented litigant, the Tribunal determines that it is just that no order for costs be made against him.

Kessete v Transport Accident Commission

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Kessete v Transport Accident Commission (Review and Regulation) [2025] VCAT 974 (23 September 2025)