Abela v Goodman Fielder Mills Ltd & Anor - [2000] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 4510 of 1999

TONY ABELA

Appellant

GOODMAN FIELDER MILLS LTD & ANOR.

Respondents

---

JUDGES:	WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2000
DATE OF JUDGMENT:	16 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 19

---

Personal injuries – Whether injury serious within meaning of s.135A(19)(a) Accident Compensation Act 1985 – Judge’s refusal to grant leave to institute proceedings upheld.

---

APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr. H. Fox Q.C.

and Mr. C. Nettlefold

Ryan Carlisle Thomas

For the Respondents

Mr. J. Ruskin Q.C.
and Mr. F. Zydower

Blake Dawson Waldron

WINNEKE, P.:

I will invite Buchanan, J.A. to deliver the first judgment in this appeal.

BUCHANAN, J.A.:

The appellant, who is now aged 42 years, was employed as a fork lift driver between 1988 and 1995. In February 1994, or perhaps earlier, the appellant's neck was jarred by the unsprung fork lift being jolted by a bump. The fact that the appellant was required to drive in reverse when carrying a load and was thus constantly turning his neck, may have contributed to the jarring he experienced. The appellant consulted a number of medical practitioners in 1994 complaining of pain in his neck. In January 1995 he ceased to work. In an affidavit he swore:

"I simply wasn't able to work any further and I stopped. By this stage I was having not only pain in my neck, but headache and pain in my left shoulder and pain going down my left arm."

The applicant left school at a very early age. He has no qualifications save as a fork lift driver. The pain from his neck, he says, prevents him from driving fork lifts or pursuing labouring jobs or factory work. He has not worked since 1995.

The appellant applied for leave to institute proceedings for damages for personal injuries pursuant to the provisions of s.135A of the Accident CompensationAct 1985. The appellant claimed that he had sustained a "serious injury" within the meaning of paragraph (a) of the definition contained in s.135A(19), that is, a "serious long-term impairment or loss of a body function".

The application was refused. The judge who determined the application stated his conclusions in terms of four propositions. He said:

"(a)I do not doubt that the Applicant has a long-term problem with his neck, probably as a result of degenerative disc pathology exacerbated or made symptomatic by his employment as a fork lift driver.
(b)I am unable to determine the question as to whether, when compared with other like injuries, the Applicant's injury is to be fairly described as very considerable and certainly more than significant or marked.
(c)The conclusion in (b) is partly because of my view of the florid manner of the Applicant's presentation to his doctors and in Court, his acknowledged unreliability - not deliberate I am sure - as an historian and witness, and my anxiety that there is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Abela v Goodman Fielder Mills Ltd & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] VSCA 19
Decision Date: 16 February 2000

CaseChat Overview and Summary

In the matter of Abela v Goodman Fielder Mills Ltd & Anor, the plaintiff, Abela, sought to recover damages for personal injuries sustained in a workplace accident. The defendant, Goodman Fielder Mills Ltd, argued that the plaintiff's injuries were not serious enough to warrant compensation under section 135A(19)(a) of the Accident Compensation Act 1985. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff's injuries met the threshold of seriousness required to be eligible for compensation under the Act. This involved determining the extent of the injuries and assessing if they fulfilled the statutory criteria of being serious within the meaning of the legislation.

The court examined the nature and severity of the injuries, considering medical evidence and expert opinions. It evaluated the impact of the injuries on the plaintiff's ability to work and perform daily activities. The court also considered the statutory definition of serious injury and whether the injuries in question aligned with this definition. Ultimately, the court concluded that the plaintiff's injuries did not meet the required threshold of seriousness under the Act, thereby upholding the judge's earlier refusal to grant leave to institute proceedings. This decision was based on the court's assessment that the injuries, while genuine, did not sufficiently impact the plaintiff's life to qualify for compensation under the specified section of the Act.

Given the court's findings, the plaintiff's claim for damages was dismissed. The court confirmed the lower court's decision that the injuries were not serious enough to meet the statutory criteria for compensation. As such, the plaintiff was not granted leave to proceed with the claim. This outcome reinforced the stringent requirements for compensation under the Accident Compensation Act 1985, ensuring that only those with sufficiently serious injuries are eligible for benefits.

Orders