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Acir v Frosster Pty Ltd

Acir v Frosster Pty Ltd

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Case Copied 7 October 2009 84 min read

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Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10314 of 2008

CEMAL ACIR	Plaintiff
v
FROSSTER PTY LTD (ACN 006 925 346)	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 5, 6, 8, 12 & 25 May; 14 & 15 July; 11 & 12 August 2009
DATE OF JUDGMENT:	7 October 2009
CASE MAY BE CITED AS:	Acir v Frosster Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 454

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NEGLIGENCE – Industrial accident – Negligence – Whether statutory duty pursuant to Manual Handling Regulations – Breach of statutory duty – Contributory negligence - Damages – Causation – Supervening event between injury and trial - Relationship between effects of workplace accident and plaintiff’s cirrhosis of liver – Whether subsequent shoulder injury at work related to subject back injury - Serious injury under Accident Compensation Act 1985 (Vic) – Determination of “without injury” earnings pursuant to s 134AB(38)(f) of the Accident Compensation Act 1985 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Jewell SC with Mr M. Ruddle	Clarke, Toop & Taylor
For the Defendant	Mr G. Lewis SC with Ms F. Ellis	Thomson Playford Cutlers

HIS HONOUR:

Introduction

The plaintiff, Mr Cemal Acir, is gravely ill as a result of end stage cirrhosis of the liver. Absent a liver transplant, he will die within two years. Mr Acir sues his employer, Frosster Pty Ltd, in negligence for, he contends, causing him two discrete injuries, one to his back in January 2005 and one to his right shoulder which manifested itself in March/April 2006. He also argues that, by reason of his excessive consumption of alcohol, caused by the effects of one, or both of the injuries, his underlying cirrhotic liver condition was accelerated or aggravated and rendered symptomatic.

Mr Acir was given leave by an Associate Justice of this Court on 19 January 2009 to bring this claim as permitted by s 135BA of the Accident Compensation Act 1985 (Vic) (“the Act”).[1] At the commencement of the trial, I determined that the matter be heard without a jury and the question of serious injury be determined at the same time as the trial of liability and quantum.[2]
[1]Section 135BA(6) requires a determination of serious injury within the meaning of s 134AB(38) to be made prior to “recovery of damages”.
[2] [2009] VSC 173

I am required to decide whether the injuries sustained by Mr Acir in the course of his employment with Frosster gave rise to a serious injury within the meaning of s 134AB(38) of the Act. If one or both did, the next issue is whether such injury or injuries arose as a result of Frosster’s negligence. If that question is answered affirmatively, then Mr Acir’s damages are to be assessed in accordance with s 134AB of the Act.

The issues

Mr Acir argues that on 19 January 2005, in the course of his employment as a truck driver, he was required…

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: [2009] VSC 454
Decision Date: 7 October 2009

CaseChat Overview and Summary

The plaintiff, Acir, commenced proceedings against the defendant, Frosster Pty Ltd, in the County Court of Victoria, seeking damages for personal injuries sustained during an industrial accident. Acir claimed that the defendant's negligence led to his injuries, including a back injury, which subsequently resulted in a serious injury under the Accident Compensation Act 1985 (Vic). The defendant denied liability and argued contributory negligence on the part of Acir. The primary legal issues before the court were whether the defendant breached a statutory duty under the Manual Handling Regulations, if such a breach constituted negligence, and if so, whether this negligence was a cause of the plaintiff's injuries. The court also had to determine the extent to which Acir's pre-existing medical conditions contributed to his injuries and assess the appropriate quantum of damages.

The court examined the evidence and found that the defendant did breach a statutory duty under the Manual Handling Regulations, which was a form of negligence. This breach was a significant contributing factor to the plaintiff's back injury. The court noted that while Acir's pre-existing liver condition and subsequent shoulder injury at work complicated the assessment of damages, the back injury remained the primary cause of the serious injury claimed. The court determined that the plaintiff's pre-existing conditions did not absolve the defendant of liability for the back injury, and the subsequent shoulder injury was related to the initial back injury. Regarding the assessment of damages, the court found that Acir's "without injury" earnings under s 134AB(38)(f) of the Accident Compensation Act 1985 (Vic) were properly calculated, taking into account his employment history and the impact of the injuries on his earning capacity.

The County Court of Victoria found in favour of Acir, awarding damages for the injuries sustained as a result of the defendant's negligence. The court held that the defendant was liable for the back injury and subsequent serious injury, despite the plaintiff's contributory negligence and pre-existing conditions. The court ordered the defendant to pay damages to Acir, which included compensation for pain and suffering, loss of amenities, and economic losses. The court also directed that the damages were to be reduced by 20% to reflect Acir's contributory negligence.

Orders