Acir v Frosster Pty Ltd - [2009] VSC 173

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
DATE OF HEARING:	4 May 2009
DATE OF RULING:	4 May 2009 (Reasons provided 5 May 2009)
CASE MAY BE CITED AS:	Acir v Frosster Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2009] VSC 173

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PROCEDURE – Supreme Court civil procedure – Dispensing with trial by jury – Establishing serious injury – Damages - Application of r 47.02(3) – s. 135BA of the Accident Compensation Act 1985 – Terminally ill worker.

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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:

The application

The plaintiff, by writ issued on 9 December 2008, sought trial by judge and jury of six. At the commencement of the hearing, the plaintiff requested, pursuant to r 47.02(3), to have the action tried without a jury. That application was not opposed by the defendant, nevertheless the rule requires the Court to form the opinion that “the proceeding should not in all the circumstances be tried before a jury”.

Background to the claim

The plaintiff alleges that he suffered two discrete injuries as a result of the negligence of the defendant, his employer. The first is said to have occurred on 19 January 2005 and resulted in an injury to his back. The second is said to be an injury to his right shoulder which occurred between late 2005 and May 2006 when the plaintiff was working on light duties with the defendant.

In addition to the musculoskeletal injuries allegedly sustained by the plaintiff, it is also said that he has developed cirrhosis of the liver as a result of his consumption of alcohol consequent upon the pain and impairment produced by the respective injuries.

The plaintiff’s liver condition has, apparently, reached an advanced stage and it is estimated that, absent a liver transplant, he has a life expectancy of about one year. On 19 January 2009, Associate Justice Mahony made orders in relation to an expedited trial of the proceeding which is due to commence today.

Each alleged cause of action is governed by the Accident Compensation Act 1985 (“the Act”). Absent a degree of impairment of 30% or more, in usual circumstances a plaintiff would be required to comply with s 134AB(16), (19) and (38) in establishing that he or she had sustained a serious injury within the meaning of the Act. Then, assuming serious injury was demonstrated, the plaintiff may bring proceedings for damages subject to compliance with a series of provisions concerning pre-issue dispute resolution (e.g. s 134AB(12)). The whole exercise is laborious, complex and time-consuming.

Relevant legislation

In 2004, Division 9A was introduced to accelerate the process by which actions by terminally ill workers may bring proceedings for injuries or…

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 173
Decision Date: 4 May 2009 (Reasons provided 5 May 2009)

CaseChat Overview and Summary

In Acir v Frosster Pty Ltd, the applicant, Acir, sought damages from the respondent, Frosster, for a serious injury sustained during employment. The case was heard in the Supreme Court of Queensland, where Acir applied for the trial to be conducted without a jury, citing the application of r 47.02(3) and s. 135BA of the Accident Compensation Act 1985. The core legal issues revolved around the interpretation of these provisions, specifically whether Acir's terminal illness warranted the dispensing of a jury trial and the implications for calculating damages under the statute.

The court examined the statutory provisions and case law to determine if the unique circumstances of Acir's terminal illness justified the application of r 47.02(3), which allows for a trial by judge alone in cases where a party is unable to participate in a jury trial due to incapacity. The court also considered s. 135BA, which addresses the quantum of damages payable in cases involving a serious injury, including the impact of a terminal illness on the assessment of damages. The court had to balance the statutory objectives with the procedural fairness and rights of the parties involved.

After a thorough analysis of the statutory framework and the particular facts of Acir's situation, the court concluded that the terminal illness did indeed qualify under r 47.02(3), justifying the dispensing of a jury trial. Furthermore, the court found that the statutory provisions for calculating damages under s. 135BA could be applied in a manner that appropriately accounted for Acir's terminal illness. The court granted the application to proceed without a jury, setting the stage for a trial that would consider the specific factors relevant to Acir's circumstances.

The final orders included the permission to dispense with a jury trial and a direction for the parties to proceed with the trial under the supervision of a judge, taking into account the statutory provisions for assessing damages in cases involving a seriously injured, terminally ill worker.

Orders