ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act1985 – Application granted by County Court – Appeal to Court of Appeal under s 134AD – Whether serious injury established – Severity of injury – Whether a psychological component – Failure to cross-examine applicant as to observations made by medical practitioners – Rule in Browne v Dunn – Applicant who satisfies loss of earning requirements of s 134AB may claim damages for pain and suffering – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr M F Wheelahan SC with Mr S A O’Meara
Thomson Playford Cutlers
For the Respondent
Mr J H Mighell SC with Mr D J N Purcell
Slater & Gordon
REDLICH JA:
BEACH AJA:
Introduction
Mr Mohammed Abdulle, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained on or about 26 June 2003. The application was heard by Judge Anderson of the County Court on 10 and 13 October 2008. The respondent relied upon a low back injury which he claimed satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The appellants conceded that that the evidence established the respondent had sustained an organic injury in compensable circumstances.
The evidence adduced on the hearing of the application consisted of:
(a) the respondent’s affidavit sworn 28 May 2007 and additional viva voce evidence given by the respondent;
(b) reports from the respondent’s GP, Dr Macaulay, Dr Macaulay’s file and additional viva voce evidence given by Dr Macaulay;
(c) medical reports from Mr A Razif (orthopaedic surgeon) and Mr M Fogarty (orthopaedic surgeon) on behalf of the respondent;
(d) medical reports from Dr P Mutton (consultant occupational physician), Dr V Botvinik (consultant psychiatrist), Dr P. Kornan (consultant psychiatrist), Mr B Dooley (orthopaedic surgeon), Dr A Gallichio (presiding member for and on behalf of a medical panel), Mr I Jones (orthopaedic surgeon), Dr J Douglas (consultant psychiatrist) and Mr P Scott (consultant surgeon) on behalf of the appellants;
(e) a letter from Flexi Personnel (tendered by the respondent);
(f) reports from WorkFocus Australia and Farquhar Associates (tendered by the respondent);
(g) an X-ray report, CT scan report and MRI report dated 25 November 2003, 5 October 2005 and 15 February 2006 respectively;
(h) a WorkCover claim form, employer claim report and register of injuries form dated 24 October 2005, 24 October 2005 and 26 June 2003 respectively; and
(i) a DVD of…
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.
Continue reading Advanced Wire & Cable Pty Ltd v Abdulle
Advanced Wire & Cable Pty Ltd appealed against a decision of the County Court which found that its former employee, Abdulle, suffered a serious injury within the meaning of the Accident Compensation Act 1985. The County Court granted Abdulle's application for compensation under s 134AB(16)(b) of the Act. The Court of Appeal was required to determine whether Abdulle had established that he suffered a serious injury, whether the severity of his injury was such that it could be classified as a serious injury, and whether there was a psychological component to his injury. The Court also considered whether the failure to cross-examine Abdulle on his observations made by medical practitioners was a breach of the rule in Browne v Dunn.
The Court of Appeal found that Abdulle had established that he suffered a serious injury. The severity of his injury was such that it could be classified as a serious injury. The Court held that there was a psychological component to Abdulle's injury. The failure to cross-examine Abdulle on his observations made by medical practitioners did not breach the rule in Browne v Dunn. The Court held that an applicant who satisfies the loss of earning requirements of s 134AB may claim damages for pain and suffering.
The Court of Appeal dismissed the appeal and held that the County Court's decision was correct. The Court found that Abdulle had established that he suffered a serious injury. The Court held that the severity of his injury was such that it could be classified as a serious injury. The Court also found that there was a psychological component to Abdulle's injury. The Court held that the failure to cross-examine Abdulle on his observations made by medical practitioners did not breach the rule in Browne v Dunn. The Court held that an applicant who satisfies the loss of earning requirements of s 134AB may claim damages for pain and suffering.
The Court of Appeal dismissed the appeal and affirmed the decision of the County Court. The Court held that Abdulle was entitled to compensation for his serious injury. The Court also held that the County Court's decision was correct and that there was no error in law or fact.