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Alsco Pty Ltd v Mircevic

Alsco Pty Ltd v Mircevic

Case [2013] VSCA 229 4 September 2013

Appeal

Expert Evidence

Admissibility of Evidence

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0242

ALSCO PTY LTD (ACN 000 435 629) and VICTORIAN WORKCOVER AUTHORITY (WORKSAFE VICTORIA)	Appellants
	v
VICA MIRCEVIC	Respondent

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JUDGES	WARREN CJ, OSBORN JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 July 2013
DATE OF JUDGMENT	4 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 229
JUDGMENT APPEALED FROM	Mircevic v Alsco Pty Ltd & Anor [2012] VCC 1603 (Judge Kings)

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ACCIDENT COMPENSATION – Appeal – Serious injury – Where difference of opinion between expert witnesses as to whether employment was a cause of the appellant’s injury – Whether judge at first instance failed to have regard to the evidence of one expert witness – Whether judge at first instance erred in giving greater weight to the evidence of expert witnesses who gave oral evidence – Whether judge at first instance gave adequate reasons – Appeal dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr O’Meara SC with

Mr S Gladman

Wisewould Mahony

For the Respondent

Mr A Ingram with

Ms M Pilipasidis

Nowicki Carbone Lawyers

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Osborn JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.

OSBORN JA:

This is an appeal against the decision of her Honour Judge Kings that a condition from which the respondent (‘plaintiff’) suffers constituted a serious injury within the meaning of s 134AB(2) of the Accident Compensation Act 1985 (‘the Act’) arising out, or in the course of, or due to the nature of her employment.[1]
[1]Section 134AB(2) provides:
A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.

The case is an unusual one because first there is no dispute that the condition of cervical dystonia which is in issue (constituted by compulsive spasm and jerking of the neck) itself constitutes a serious injury in the relevant sense. Rather, the primary dispute is whether her Honour erred in the reasons she gave for concluding that a cause of the plaintiff’s condition was her employment. Secondly, the case is unusual because the condition in issue is itself unusual and there is a division of expert opinion as to the provable mechanism of its causation.

For the reasons I shall set out, I am ultimately of the opinion that in circumstances where the evidence did not exclude other possibilities, her Honour was nevertheless, for the reasons she gave, entitled to prefer the opinion of those medical experts who expressed the view that a causal link between the plaintiff’s employment and the condition from which she suffered had been established on the balance of probabilities.

Background facts

The plaintiff is a 61 year old woman.

Between 1997 and 2008 the plaintiff worked for the first appellant…

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 Alsco Pty Ltd v Mircevic

Details

AGLC: Alsco Pty Ltd (ACN 000 435 629) and Victorian Workcoverauthority (WorkSafe Victoria) v Vica Mircevic [2013] VSCA 229
Case: [2013] VSCA 229
Decision Date: 4 September 2013

CaseChat Overview and Summary

Alsco Pty Ltd sought to appeal against a decision which found that the company was liable for compensation for injuries sustained by its employee, Mircevic. The nature of the dispute was whether Mircevic's employment with Alsco was a contributing factor to the injuries he sustained. The case was heard by the Court of Appeal.

The legal issues before the court were whether the judge at first instance failed to consider the evidence of one expert witness, whether the judge erred in giving greater weight to the evidence of expert witnesses who gave oral evidence, and whether the judge gave adequate reasons for their decision. The court was required to determine whether the judge's decision was correct and whether there were any errors in the assessment of the evidence.

The court found that the judge at first instance had considered all relevant evidence, including the evidence of the expert witness in question, and gave adequate reasons for their decision. The court also found that the judge did not err in giving greater weight to the evidence of expert witnesses who gave oral evidence. The court held that the judge's decision was correct and dismissed the appeal. The court found that the judge's reasons were sufficient and that there were no errors in the assessment of the evidence. Therefore, the appeal was dismissed.

Orders