Sweet v Transport Accident Commission (General) [2010] VCAT 1498

Mr Nick Dubrow of Counsel, instructed by Maurice Blackburn

Mr Philip Solomon of Counsel, instructed by the Transport Accident Commission

1. Mr Sweet was born in 1979. In 1996 whilst driving a dirt bike he was struck by a motor vehicle inflicting T8 complete paraplegia upon him. He is as a result confined to a wheelchair.
2. Mr Sweet was before his accident an enthusiastic motorcycle rider riding extensively off-road. He said dirt bike riding was 'my main leisure activity. I would ride dirt bikes every weekend and after school during summer'. Despite his accident he has maintained his enthusiasm as a motorcycle rider. His disability now prevents him riding two wheeled motorcycles, nevertheless he has maintained and ridden a number of 'quad bikes' (that is four wheeled motorcycles). These vehicles however cannot be registered for on-road use.
3. Mr Sweet is also a licensed motorcar driver capable of driving orthodox sedans subject to the provision of specially adapted hand controls. He has had a number of such vehicles over the years, one of which was modified at the expense of the Transport Accident Commission. His most recent motorcar was a 1997 V8 Commodore. He sold this in January 2010 complaining that the paintwork had deteriorated as had the interior. The interior was subject to excessive wear from his having to load and unload his wheelchair repeatedly. He also felt the car was a 'gas guzzler'. The result then is that Mr Sweet now has no vehicle available to ride on Victoria's road system. He is married with a four year old daughter . His wife has an unmodified Commodore vehicle which Mr Sweet is unable to drive.
4. Mr Sweet wished to obtain assistance from the Transport Accident Commission under the terms of the Transport Accident Act 1986 to fund a road motorcycle or similar vehicle for use as his mode of transport. He sought to have a motorcycle modified so that he could use it. He said:

Motorcycle riding was an enormous part of my life prior to the accident and I sought to re-establish the capacity to undertake this activity in all aspects of my life, including as my form of road transport.

1. As a result of that application he was assessed by occupational therapist, Mr Tom Eley who carried out the assessment on the instruction of the Transport Accident Commission. The Commission made a determination on 2 January 2007 denying Mr Sweet's request. There then followed negotiations and conferences with the result that the Commission rescinded its 2007 decision on 21 May 2008. Mr Eley conducted further assessments.
2. Mr Eley considered and rejected a number of vehicles. Ultimately he identified a three wheeled vehicle known as a Can Am Spyder as the appropriate one. According to Mr Sweet 'this vehicle was more expensive than a motorcycle but required little conversion and much lower conversion costs'. In response to a query from the Commission Mr Sweet stated a willingness to contribute $6,000 to the purchase price:

Such an amount being what it would cost me to purchase a reasonably good condition motorcycle if a motorcycle conversion had been available.

1. On 11 March 2009 the Commission renewed its determination to reject Mr Sweet's application. Solicitors acting for Mr Sweet filed a review application under Section 77 of the Transport Accident Act 1986 on 3 September 2009. The proceeding was listed for hearing for the first time on 29 March 2010. Around that time the Commission informed Mr Sweet that the regulations made under the Road Safety Act had been amended with the effect that as from the end of 2009 a person holding a probationary motorcycle rider's licence would not be qualified to ride the Can An Spyder. At that time Mr Sweet did not hold even a probationary licence. He acquired this licence in June 2010 and will not be qualified to hold a full licence until June 2011. The result is that were he provided with the Can An Spyder forthwith he could not legally ride it on Victoria's road system until June 2011.
2. The hearing of the matter was deferred until 12 August and then further deferred until 6 September 2010.
3. The estimated cost of the Can Am Spyder is $28,000, a further $10,000 would have to be spent to modify it to render it suitable for Mr Sweet's purposes.

1. Mr Sweet through his Counsel, Mr Dubrow places reliance on Section 60 sub-sections (3), (3A) and (3B) of the Transport Accident Act 1986. Those sub-sections provide:

(3) If a person, as a result of his or her transport accident injury, reasonably requires a motor vehicle used by him or her in Australia to be modified, the Commission is liable -

(a) to pay the reasonable costs of modifying the vehicle; or

(b) if the vehicle is not capable of being modified, to contribute a reasonable amount to the purchase cost of a suitably modified motor vehicle selected by the Commission.

(3A) If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle, and he or she does not have access to a motor vehicle, the Commission is liable to contribute a reasonable amount to the purchase cost of a suitable motor vehicle selected by the Commission.

(3B) Without limiting the factors the Commission may consider in determining what is a reasonable amount for the purposes of subsections (3)(b) and (3A), the Commission must have regard to any of the following factors that are applicable -

(a) the market value now of the motor vehicle used by the person at the time of the accident;

(b) if that vehicle is no longer used by the person, the market value of the vehicle at the time of the accident;

(c) whether the person or, in the case of a minor, his or her parent or guardian, owned, leased or rented the vehicle;

(d) how often the person was using motor vehicles at the time of the accident;

(e) how often the person will, or is likely to, use a motor vehicle in future;

(f) the market value of any other motor vehicle that the person uses.

1. Mr Solomon, Counsel for the Transport Accident Commission submitted first, that as at the date that the Commission made its decision, Mr Sweet had access to a motor vehicle, namely the modified V8 Commodore hence he submitted the requirements of Section 60(3A) were not met.
2. It would be wrong, said Mr Solomon, for a subsequent divestment of that vehicle, the sale in January 2010 to be allowed to change that situation. It would be wrong, he said, for Mr Sweet to 'seek a benefit on the basis that he is a person who does not have access to a motor vehicle' by reason of his own voluntary act in disposing of the Commodore. To hold otherwise according to Mr Solomon would be absurd.
3. In any event, said Mr Solomon the Commission's refusal to fund Mr Sweet's proposal was clearly reasonable. He said the legislation directed itself first and foremost to the cost of modification and only provided for the acquisition of a new vehicle 'unless there is no reasonable alternative'. According to Mr Solomon a motorcar would be the appropriate vehicle for Mr Sweet. The additional protection that the body of a motorcar would provide renders it safer and the more appropriate vehicle for road use.
4. According to Mr Solomon the Can Am Spyder was not a suitable vehicle selected by the Commission. The Commission's selection was of course a reviewable decision but 'it should be noted that the primary decision is that of the Commission, not the applicant'.
5. Next he referred to misgivings expressed by another occupational therapist, Ms Wendy who acted as a consultant to the Commission. She noted in a report to the Commission that the Can Am Spyder might cause pressure ulcers. She said there might be pain and that the stress of transfers from Mr Sweet's wheelchair to the Can Am Spyder might put inappropriate strain on Mr Sweet's shoulder girdle. She was also critical of the lack of loading facilities and the fact that the rider would be exposed to the elements and vulnerable to injury. She said the Can Am Spyder would not be suitable transport for Mr Sweet's daughter or further children that he might have.
6. Mr Solomon submitted that the relevant provisions directed themselves to the provision of transport to an injured person not the provision to him or her of recreational facilities.
7. According to Mr Solomon Section 60(3) applies only to a motor vehicle which an injured person had at the time of the relevant transport accident.

1. Mr Dubrow submitted that it was reasonable and proper to give proper weight and preference to the fulfilment which Mr Sweet said he would derive from driving the Can An Spyder on the road. Satisfaction and quality of life were of vital importance to people suffering serious disabilities such as Mr Sweet was.
2. He said the evidence demonstrated that the Can Am Spyder was satisfactory for Mr Sweet's purposes. It could carry Mr Sweet's wheelchair according to the evidence of Mr Eley, the first occupational therapist who assessed for the Commission by the use of a bracket at the left hand rear of the cycle. This was a safer and more satisfactory means of conveying the wheelchair than leaving it in the passenger seat as is customary for paraplegics using modified motor vehicles since in those situations the wheelchair is left unrestrained. He referred to Mr Sweet's evidence that the Can Am Spyder would be very fuel efficient in comparison to the V8 Commodore. He referred to the evidence of Mr Eley that the Can Am Spyder incorporated a number of safety features including a stability control and ABS brakes. These and its good acceleration suited it well to avoid motor accidents. He noted that Mr Eley said that whilst motorcycles of various configurations do not employ seatbelts the modified Can An Spyder would include a number of features which would provide analogous protection to Mr Sweet.

1. Section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 entitles me to inform myself on any matter as I see fit. This power is at least as extensive as the power of a judge in Court to take judicial notice of matters without evidence. In my view it is sufficiently notorious for a judge or a Tribunal member to notice that motor vehicles are used in this society predominately for the purposes of mobility and that the road use of motor vehicles is only secondarily used for the purposes of recreation. Of course mobility may contribute to recreation. If someone drives himself to a beach resort to go surfing, sunbathing or fishing the ultimate object is recreational but the drive from the person's permanent home to the beach is not in itself a piece of recreation.
2. Similarly the ability of an individual to travel at relatively high speed from his or her residence to a variety of community facilities enables that person by virtue of the mobility provided by the motor vehicle to participate in society. This mobility is the more vital today when community facilities are more centralised and less distributed across the metropolis and regional areas than in previous times. The assumption underlying the placement of these facilities is that every member of the community has access to motor transport to travel to more centralised locations.
3. These are the sort of matters which as far as I can see Parliament had in mind when it spoke in Section 60(3A) of the Transport Accident Act of a person's requiring access to a motor vehicle. It did not so far as I can see contemplate that access would be required for recreational purposes, that is for the joy of driving.
4. It follows in my view that 'the joy of driving' or 'riding' whilst it may not be an entirely irrelevant consideration for the Commission in exercising its powers under Section 60(3) or (3A) it is by no means central. The more utilitarian aspects of access to which I refer to above are the central considerations.
5. Mr Sweet frankly conceded that the reasons why he would prefer a Can Am Spyder to for instance a modified Toyota Corolla or Holden Commodore commonly used motor sedans in Victoria, is that he would derive a feeling of joy, freedom and liberation from his injuries from driving the Can Am Spyder that he would not by driving an ordinary sedan.
6. I agree with Mr Solomon's contention that Section 60(3) can have no application to a situation such as this. It appears to direct itself to modifications to 'a motor vehicle used by [the injured person] in Australia'. The reference appears therefore to be to a vehicle used by the injured person at the time of the accident. The sub-section provides either for the modification of the vehicle or contribution of a reasonable amount to the purchase cost of a modified vehicle in substitution.
7. It follows that the present application should be dealt with under sub-section (3A).
8. Mr Solomon said that the Commission did not suggest that Mr Sweet had any ulterior or inappropriate motive in disposing of the Commodore V8. As at the time of hearing therefore he meets the requirement of sub-section (3A) in reasonably requiring access to a motor vehicle as a result of the transport accident injury. A motor vehicle is vital to provide mobility to a person of Mr Sweet's tragic circumstance. He cannot walk or use a push bike, use of public transport is far more difficult for him than for most citizens.
9. I agree that the reference in sub-section (3A) to 'a suitable motor vehicle selected by the Commission' indicates first that subject of course to review under Section 77, the primary right to select the vehicle is vested in the Commission not in the injured person and secondly that the suitability of a motor vehicle for the purposes of the sub-section is to be judged in light of the utilitarian considerations which create the need for access to the motor vehicle.
10. The Transport Accident Commission is devoted above all to road safety. It follows that it is quite proper for the Commission and this Tribunal on review to give paramount importance to safety in the selection of a motor vehicle for the Commission to fund. Whilst I was not provided with comparative figures for deaths and injury suffered by drivers and passengers of motor vehicles as distinct from deaths and serious injuries suffered from motorcycle riders and their passengers, it could not seriously be denied that the additional protection furnished by the body and structure of a motor vehicle gives superior safety other things being equal to a motor vehicle as against a motor cycle whether of the two wheel, three wheel or four wheel variety. Acknowledging that the Can Am Spyder has a variety of important safety features which led to its selection above a number of other possible vehicles, those safety features and the additional fuel economy do not in my view outweigh the road safety negatives which attach to any motorcycle as compared to an ordinary motor car.
11. It follows that in my view the Can An Spyder is not 'suitable' for the purposes of Section 60(3A).
12. The respondent's determination should be affirmed.
13. The effect of the Tribunal's determination is solely with respect to the Can An Spyder. As Mr Solomon correctly observed this determination is not to the effect that Mr Sweet does not require access to another type of vehicle, viz an orthodox motorcar or that it may not be appropriate for such a vehicle to be provided for him by the Commission in accordance with Section 60(3A).
14. I should say something briefly about another of the submissions made by Mr Solomon. I do not accept that the problems with timing as to Mr Sweet's licence to drive the Can An Spyder should in themselves have been an obstacle to Mr Sweet's success in this proceeding. That the regulations changed in the manner that they did was disruptive for Mr Sweet's compensation application. I can see no reason why had I been persuaded generally that his application should succeed, it would not have been appropriate to determine the matter in his favour, setting aside the Commission's determination and substituting therefore a determination that the Commission provide the Can Am Spyder to Mr Sweet modified for his purposes in time for delivery in June 2011. All the evidence suggested that Mr Sweet's medical condition and physical abilities and inclinations have been stable for some years. There is therefore no reason to think that any of these vital matters would be any different in June 2011 than they are in September 2010.