Accident Compensation - "Serious injury" - Two injuries to spine - Damages not recoverable in respect of second injury - Each injury and resulting impairment to be considered separately.
Lu v. Mediterranean Shoes Pty. Ltd. [2000] 1 V.R. 511, applied.
---
APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr R.P. Gorton, Q.C. with Mr P.H. Solomon
Gadens Lawyers
For the Respondent
Mr H.W. Fox, Q.C. with Mr M.J. Ruddle
V. Verduci & Associates
BUCHANAN, J.A.:
In 1988 the respondent commenced employment with the first-named appellant as a bus driver. He was then 34 years old. He had left school at the age of 16 years and had worked as an apprentice painter for one year, a machine operator for six years and on a family farm.
On 3 July 1995 the respondent was alighting from his bus when he slipped, fell and hit his back on the steps. He felt a great deal of pain but continued driving for an hour. He was then relieved, and at that point suffered pain in his low back radiating into his legs. He sought medical attention and was given analgesic and anti-inflammatory medication. X-rays revealed degenerative disc disease at L4-5 and L5-1. The respondent was treated by a physiotherapist. He was absent from work for three weeks and returned to light duties. He remained on light duties for seven months, when he recommenced full-time work as a bus driver. He still experienced pain, but put up with it in order to remain in his employment.
On 3 December 1998 the respondent rose from his seat on the bus, but forgot to disengage his seatbelt. The sudden tug on the seatbelt caused severe pain in his lower back which gradually worsened. During December the respondent suffered pain and muscle spasms, which were not relieved by analgesics or physiotherapy. A CT scan on 30 December showed mild posterior disc bulging at L4-5. An MRI scan in July 1999 showed a prominent right paracentral/lateral disc extrusion at L4-5 extending posteriorly to L5, resulting in posterior displacement and compression of the right L5 nerve root. The respondent returned to work on light duties. He did not resume bus driving.
The respondent applied to the County Court pursuant to the provisions of s.135A(4) of the Accident Compensation Act 1985 ("the Act") to bring proceedings for the recovery of damages in respect of the injury which he sustained in 1995. By reason of the provisions of s.134A of the Act the respondent could not recover any damages in respect of the injury he sustained in 1998. In order to obtain leave the respondent was required to establish that the injury was a "serious injury"…
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 Altona Bus Lines v Lococo
Sign in free to access the full text
Details
AGLC
Altona Bus Lines v Lococo [2002] VSCA 159
Case
[2002] VSCA 159
Decision Date
CaseChat Overview and Summary
Altona Bus Lines and Ms. Lococo were before the court in a dispute concerning compensation for an injury Ms. Lococo sustained while working as a bus driver. The central issue was whether the injuries to her spine were separate and recoverable under the Accident Compensation Act 1985 (Vic). The court was tasked with determining if the two injuries to Ms. Lococo's spine should be considered individually or as a single continuous process, which would impact the assessment of her entitlement to damages.
The primary legal issue was the interpretation of "serious injury" as defined by section 134A of the Accident Compensation Act 1985 (Vic). The court needed to decide if each injury and resulting impairment should be considered separately, or whether the injuries should be viewed as a single, ongoing condition. The decision hinged on whether the injuries were discrete events or part of a continuous process. This interpretation would determine the extent of Ms. Lococo's entitlement to compensation.
The court reasoned that the injuries to Ms. Lococo's spine, though related, constituted separate injuries under the Act. This conclusion was supported by the decision in Lu v. Mediterranean Shoes Pty. Ltd., which established that each injury and resulting impairment should be considered individually. The court held that the two spinal injuries were distinct, with separate periods of aggravation and recovery, thereby warranting separate consideration under the Act. As a result, the court ruled that damages could be claimed for each injury separately, aligning with the statutory definition and precedent set by Lu's case.
The final order was that damages were recoverable for each of the two injuries to Ms. Lococo's spine, as they were considered separate and distinct under the Act. This decision underscored the importance of treating each injury as an individual event for the purpose of assessing compensation.