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Aburrow v Network Personnel Pty Ltd

Aburrow v Network Personnel Pty Ltd

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Case Copied 7 March 2013 18 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0047

DEAN ABURROW	Appellant
	v
NETWORK PERSONNEL PTY LTD	First Respondent
	and
WORKSAFE VICTORIA	Second Respondent

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JUDGES	MAXWELL P and TATE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 August 2012
DATE OF JUDGMENT	7 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 46
JUDGMENT APPEALED FROM	Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2011] VCC 299 (Judge Kennedy)

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ACCIDENT COMPENSATION – Workers’ compensation – Refusal of leave to bring common law proceedings – Whether ‘serious injury’ – ‘Pain and suffering consequence’ of injury – Whether ‘more than significant or marked and … at least very considerable’ – Intensity and frequency of pain – Disabling effect of pain – Whether decision of primary judge ‘plainly wrong or wholly erroneous’ – Appeal dismissed – Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2012) 31 VR 100 applied – Accident Compensation Act 1985 ss 134AB(16)(b), 134AB(38)(c).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A D B Ingram with Mr M Philipasidis	Nowicki Carbone
For the Respondents	Mr S O’Meara SC with Ms M Norton	Lander & Rogers

MAXWELL P
TATE JA:

The appellant, Mr Aburrow, brought a ‘serious injury’ application in the County Court. The application was founded on what the Accident Compensation Act 1985 (Vic) (the ‘Act’) calls the ‘pain and suffering consequence’ of the injury.[1] Accordingly, the judge had to decide whether the impact on Mr Aburrow of the pain and suffering attributable to the injury was:

when judged by comparison with other cases in the range of possible impairments or loss of a body function, … fairly described as being more than significant or marked, and as being at least very considerable.[2]

[1]Accident Compensation Act 1985 s 134AB(38)(c).

[2]Ibid.

The judge was not persuaded that the ‘pain and suffering consequence’ of the injury satisfied the statutory criteria.[3] Mr Aburrow now appeals to this Court under s 74 of the County Court Act 1958 (Vic). The first question which arises concerns the nature of the appeal.
[3]Aburrow v Network Personnel Pty Ltd & Anor [2011] VCC 299, [75] (‘Reasons’).

It was common ground that, following the repeal of s 134AD of the Act (which required this Court to ‘decide for itself’ whether the injury in question was a ‘serious injury’),[4] appeals in serious injury cases are once again governed by the decision of the five‑member bench of this Court in Mobilio v Balliotis.[5] In the absence of specific error, therefore, the determination of the judge — that ‘serious injury’ had not been shown — will stand unless this Court is satisfied that the determination was plainly wrong or wholly erroneous.[6]
[4]Section 134AD was repealed by s 60 of the Accident Compensation Amendment Act 2010 (Vic). The repeal of s 134AD took effect on 10 December 2009: Accident Compensation Amendment Act 2010 (Vic) s 2(5). Section 134AD provided:
On the hearing of an appeal…

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.

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Details

Case: [2013] VSCA 46
Decision Date: 7 March 2013

CaseChat Overview and Summary

The applicant, Mr Aburrow, sought leave to bring common law proceedings against his former employer, Network Personnel Pty Ltd, in relation to an injury sustained during employment. The dispute centred on whether the injury was serious enough to warrant compensation under the Accident Compensation Act 1985. The primary judge had dismissed the application, finding the injury did not meet the statutory criteria for a serious injury, specifically in relation to the pain and suffering consequence of the injury. Mr Aburrow appealed to the court, challenging the primary judge's determination that the injury was not serious.

The central legal issues before the court were whether the primary judge was correct in finding that the injury did not constitute a serious injury, and whether the pain and suffering consequence of the injury was not more than significant or marked and at least very considerable. The court needed to determine if the decision of the primary judge was plainly wrong or wholly erroneous, given the statutory criteria under the Accident Compensation Act 1985. The applicant argued that the pain and suffering from his injury was both significant and very considerable, warranting a serious injury classification.

The court examined the primary judge's findings regarding the intensity, frequency, and disabling effect of the pain experienced by Mr Aburrow. The court found that the primary judge had appropriately considered the relevant statutory criteria and the evidence presented. The court concluded that the pain and suffering consequence of the injury did not meet the statutory threshold for a serious injury. The court held that the primary judge's decision was neither plainly wrong nor wholly erroneous. The appeal was dismissed, affirming the primary judge's decision in accordance with the statutory requirements and relevant case law.

Orders