Wassouf v Transport Accident Commission [2001] VSC 120

5. In granting leave to appeal on 17 December 1999, the Master identified two questions of law:

1. Did the Tribunal apply the appropriate onus of proof in making its determination; and

2. Did the Tribunal apply the appropriate standard of proof in making its determination.

11. The Tribunal in its reasons summarised some of the material before it and expressed the following conclusion:

"From the extracts of the evidence of the various witnesses set out above the Tribunal concludes and finds as a question of fact, adopting and accepting the evidence of Dr Klepfisz, that the 1992 traffic accident played a significant role in the initial onset of the Applicant's illness in 1992 but that by 1994 his injuries arising from that accident had stabilised considerably and that there is no causal link between his present severe psychiatric illness and the 1992 motor vehicle accident. The Tribunal is required by the provisions of Section 46B(1) to not have regard to any psychiatric impairment or symptoms arising as secondary to any physical injury and in the circumstances the Tribunal will not vary the decision made by the Respondent in respect of the Applicant's permanent impairment as outlined in its letter of 20 March 1997."

15. It was submitted on behalf of both parties that in determining the degree of impairment under s.47(7) no onus of proof in the curial sense applies. I proceed on that basis. Questions of onus involve the obligation to place material before the Tribunal, the right to begin and the question which party should succeed in the event that the mind of the decision maker is in a state of equilibrium. None of these has any role to play in this case, as the application before the Tribunal was conducted and determined.

18. Evidence of a medical nature was led on behalf of Mr Wassouf and by the Commission on the application. As appears from the passage quoted above, the Tribunal made an affirmative finding to prefer the evidence of Dr Klepfisz, a lengthy passage from whose report appears in paragraph 18 of its reasons. In paragraph 23 of its reasons, the Tribunal expresses itself a little more cautiously:

"From the evidence presented during the course of the hearing of this application the Tribunal does not have a reasonable satisfaction that the physical and/or mental injuries from which the Applicant now suffers are injuries caused as a result of the 1992 transport accident."

22. This passage suggests that it has imposed on the applicant the onus to establish that his present physical and/or mental injuries are injuries caused as a result of the 1992 accident. This is, of course, directed to a question other than the assessment of the degree of impairment. It is directed to the question of causation in respect of which the onus does lie on the applicant.

25. I conclude that the first question of law discloses, therefore, no appellable error.

29. Again, there was no dispute before me that the appropriate standard of proof is the civil standard. Nor was it suggested that the Tribunal applied any other standard. Counsel for the appellant fastened upon paragraph 22 of the reasons of the Tribunal, in which it quoted the well-known passage from the judgment of Dixon J. in Briginshaw v Briginshaw[1]:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences."

33. Counsel argued from this and from the two other cases cited by the Tribunal that it had misapplied the Briginshaw principle and that it did so by imposing a heavier burden on the applicant than was appropriate.

36. He asked rhetorically, if the Tribunal was not falling into this error, why did it refer to these cases? He submitted that if the Tribunal applied the civil standard to the applicant's case cautiously, as if it involved grave consequences, then it fell into error.

39. I do not agree. In the course of deciding the question of impairment, it was necessary for the Tribunal to consider, not only the question of causation to which I have referred, but also the question raised by s.46B of the Transport Accident Act. It is clear that the applicant was suffering a serious mental condition. Section 46B required the Tribunal to have no regard to "any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury".

42. Counsel for the Commission submitted that the facts of this case involved an unlikely causal connection between the accident in 1992 and the applicant's present grave mental condition which first manifested itself some time later. If this were so, it would entitle the Tribunal to scrutinise all of the evidence bearing on causation with caution and care. I have no reason to think that it did not do so.

45. Another reason for mentioning the Briginshaw case might have been the Tribunal's awareness that the application was one bearing grave consequences for the seriously ill applicant. This might require it to examine with care the material presented adversely to the applicant. I have no reason to think that the Tribunal did not consider all of the material in a cautious and careful way.

48. Again, the second question of law discloses no appellable error. It follows therefore that the appeal must be dismissed. The order of the court therefore will be that the appeal of the appellant be dismissed with costs, including reserved costs.

[1] [1938] HCA 34; (1938) 60 C.L.R. 336 at 362.