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ACN 005 565 926 Pty Ltd v Snibson

ACN 005 565 926 Pty Ltd v Snibson

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Case Copied 29 February 2012 44 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0144
ACN 005 565 926 PTY LTD	Appellant
v
KENT DAVID SNIBSON	Respondent

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JUDGES:	MANDIE and HANSEN JJA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2012
DATE OF JUDGMENT:	29 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 31
JUDGMENT APPEALED FROM:	Snibson v Victorian Workcover Authority & Ors [2010] VCC 1633 (Judge Kings)

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ACCIDENT COMPENSATION – Appeal against order granting leave under s 135A(4)(b) of Accident Compensation Act 1985 to commence common law proceedings – ‘Serious injury’ under s 135A(19) – Whether application made under s 135A(2B) within three-year period after date of incapacity became known – Legal principles for establishing serious injury incapacity; assessment of applications under s 135AC(b); appellate interference; adequacy of reasons – Correct principles applied – Conclusion open on whole of the evidence – Reasons adequate – Appeal dismissed – Accident Compensation Act 1985, ss 135A(19), 135AC(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S O’Meara SC with Ms J M Forbes	Lander & Rogers
For the Respondent	Mr R P Gorton QC with Mr M J Ruddle	Clark Toop & Taylor

MANDIE JA:

I agree with Kyrou AJA.

HANSEN JA:

I also agree with Kyrou AJA.

KYROU AJA:

Introduction and summary

This is an appeal by ACN 005 565 926 Pty Ltd (‘ACN’) against an order made by a judge of the County Court on 22 October 2010 in favour of ACN’s former employee, Kent David Snibson.[1] By that order, the judge granted leave to Mr Snibson, pursuant to s 135A(4)(b) of the Accident Compensation Act 1985 (‘Act’), to commence a common law proceeding against ACN seeking damages for pain and suffering and loss of earning capacity allegedly arising out of his previous employment with ACN.
[1]See Snibson v Victorian WorkCover Authority [2010] VCC 1633 (22 October 2010) (‘Reasons’). Leave to appeal was granted by Bongiorno JA and Vickery AJA on 3 December 2010.

In the County Court proceeding, Mr Snibson alleged that he sustained an injury to his cervical spine in the course of his employment as an optometrist with ACN in the period from 1 December 1992 until 12 November 1997; that the injury was a ‘serious injury’ within the meaning of para (a) of the definition of that expression in s 135A(19) of the Act; and that he became aware that it was a serious injury after 22 December 2005.

Paragraph (a) of the definition of ‘serious injury’ in s 135A(19) of the Act provides that ‘serious injury’ means ‘serious long-term impairment or loss of a body function’.

The date of 22 December 2005 is significant because of s 135AC of the Act. That section relevantly provides:

135AC Limitation of Actions Act 1958
Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a)subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application…

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: [2012] VSCA 31
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the case of ACN 005 565 926 Pty Ltd v Snibson, the dispute arose out of an appeal against an order granting leave to the respondent to commence common law proceedings under section 135A(4)(b) of the Accident Compensation Act 1985. The core issue was whether the application was made within the three-year period after the date when the incapacity became known, and whether the respondent had suffered a 'serious injury' under section 135A(19) of the Act. The case was heard in the Supreme Court of Queensland, and the respondent appealed against the decision of the primary judge.

The legal issues before the court included determining the correct principles for establishing serious injury incapacity, assessing applications under section 135AC(b), and considering whether the appellate court should interfere with the primary judge's decision. Additionally, the court had to examine whether the reasons provided by the primary judge were adequate. The respondent contended that the primary judge had misapplied the relevant legal principles and that the reasons were inadequate. The appellant, on the other hand, argued that the primary judge had correctly applied the principles and that the reasons were sufficient.

The court found that the primary judge had applied the correct principles in assessing the application and determining the respondent's incapacity. The court held that the conclusion reached by the primary judge was open on the whole of the evidence, and the reasons provided were adequate. Consequently, the appeal was dismissed. The court emphasised that it would not interfere with the primary judge's decision unless there was a clear error of law or an inadequacy in the reasons provided. In this case, neither condition was met.

The final orders of the court were that the appeal be dismissed, and the primary judge's decision to grant leave to the respondent to commence common law proceedings was upheld. The court also ordered that the appellant pay the respondent's costs of the appeal.

Orders