AEP Industries Australia Pty Ltd v Mahmoud - [2007] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3712 of 2006

AEP INDUSTRIES AUSTRALIA PTY LTD
	Appellant
v
NAGI MAHMOUD	Respondent

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JUDGES:	MAXWELL P, CHERNOV and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2007
DATE OF ORDERS:	20 September 2007
DATE OF REASONS FOR JUDGMENT:	21 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 203	1^st Revision 24 October 2007 – n 6

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ACCIDENT COMPENSATION – “Serious injury” arising out of or in course of employment – Whether worker first acquired knowledge of “serious injury incapacity” before the relevant date under s 135AC(b) Accident Compensation Act 1985 – Whether trial judge erred in failing to consider if worker’s knowledge of restricted capacity for work, loss of overtime and pain and suffering consequences constituted knowledge of “serious injury” as articulated in Humphries v Poljak [1992] 2 VR 129 – Papercorp Pty Ltd v Nicolaou [2006] VSCA 143, Edwards v McSaveny & Anor [2005] VSCA 252 referred to – Appeal allowed and proceedings remitted for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R P Gorton QC with Mr J P Gorton	Solicitor for the Victorian WorkCover Authority
For the Respondent	Mr P F O’Dwyer SC with Mr P M E Wischusen	Maurice Blackburn Cashman

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Redlich JA. Those reasons set out the basis on which I agreed in the orders which the Court made.

CHERNOV JA:

For the reasons given by Redlich JA, I agreed that the appeal should be allowed.

REDLICH JA:

At the conclusion of oral argument, the Court announced that the appeal would be allowed. Orders were made setting aside the order of the trial judge and remitting the matter for rehearing before a different judge. What follows are my reasons for joining in those orders.

By originating motion the respondent applied to the County Court for leave to commence proceedings in accordance with ss 135A and 135AC of the Accident Compensation Act 1985 (‘the Act’) in respect of a lower back injury which arose out of or in the course of employment with the appellant on or about 12 March 1996. The appellant sought an order that the proceeding be dismissed or stayed on the grounds that it had been commenced contrary to the provisions of s 135AC of the Act. The proceedings were heard in February 2006.

The respondent’s back injury occurred on 12 March 1996 when he felt a sharp pain in his back while lifting a heavy cylinder in the course of his work. The respondent had approximately a month off work following the incident and then returned on light duties with reduced overtime. He continued on light duties until April 2001 with no lifting and no bending or repetitive work. He mostly wore a brace when performing light duties. He was made redundant in April 2001 when

the appellant closed its Victorian operations. He has not been able to obtain other…

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: [2007] VSCA 203
Decision Date: 21 September 2007

CaseChat Overview and Summary

AEP Industries Australia Pty Ltd has appealed against a decision of the County Court regarding the claim of their former employee, Mahmoud, for compensation under the Accident Compensation Act 1985. Mahmoud alleged that he sustained a serious injury in the course of his employment, which resulted in a serious injury incapacity. The primary dispute centres on whether Mahmoud had acquired knowledge of his serious injury incapacity before a specified date, as required by section 135AC(b) of the Act. The appeal was heard in the Court of Appeal.

The legal issues before the Court of Appeal revolved around whether the trial judge correctly determined that Mahmoud had knowledge of his serious injury incapacity prior to the relevant date. The Court was required to consider whether the knowledge Mahmoud had of his restricted capacity for work, loss of overtime, and the pain and suffering he experienced, constituted knowledge of a "serious injury" as articulated in previous cases such as Humphries v Poljak and Edwards v McSaveny & Anor. Additionally, the Court had to assess whether the trial judge erred in failing to consider this issue.

The Court of Appeal found that the trial judge did not adequately address whether Mahmoud's knowledge of his restricted capacity for work, loss of overtime, and pain and suffering amounted to knowledge of a "serious injury" under the Act. The Court referred to Papercorp Pty Ltd v Nicolaou and Edwards v McSaveny & Anor to illustrate the importance of this consideration. Consequently, the Court allowed the appeal and remitted the proceedings for rehearing, emphasising that the trial judge must now properly consider this issue.

The Court's decision resulted in the proceedings being remitted to the County Court for a rehearing, where the trial judge must now determine whether Mahmoud's knowledge of his restricted capacity for work, loss of overtime, and pain and suffering constitutes knowledge of a "serious injury" under the Act. The appeal was allowed, and the matter was returned to the lower court for a new hearing.

Orders