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Barwon Spinners Pty Ltd & Ors v Podolak

Barwon Spinners Pty Ltd & Ors v Podolak

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Case Copied 25 February 2005 46 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

BARWON SPINNERS PTY LTD & ORS	No. 3774 of 2003
v
PODOLAK
ST. LAURENCE COMMUNITY SERVICES (BARWON) INC & ORS	No. 3776 of 2003
v
GLEDHILL
STOJANOVSKI	No. 3759 of 2003
v
BARTTER ENTERPRISES PTY LTD & ORS
PAUSAK	No. 3760 of 2003
v
BARWON HEALTH & ORS

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JUDGES:	ORMISTON, CHERNOV & PHILLIPS JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18, 19 & 20 October 2004; 7, 8, 9 & 10 February 2005
DATE OF JUDGMENT:	25 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 33

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Accident compensation – Work-related injury – Worker’s application for leave to sue employer at common law – Injury to be linked to “employment on or after 20 October 1999” – Need to identify nature and extent of relevant injury so linked – Whether “serious injury” as defined – “Permanent serious impairment of body function” – Meaning of “permanent” – “Serious” according to consequences of economic loss or pain and suffering – Need to separate psychological and psychiatric consequences – Statutory prescription for calculation of economic loss – Onus of proof as to rehabilitation and retraining – Whether employability relates to job opportunities – Accident Compensation Act 1985 s.134AB.

Courts – Appeals - Accident compensation - Appeal from County Court after “serious injury” determination in respect of possible common law proceeding – Appellate court directed to “decide for itself” the issues on appeal – Meaning and effect – Nature and extent of appellate function – Accident Compensation Act 1985 ss.134AC, 134AD.

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APPEARANCES:	Counsel	Solicitors
In Proceedings No. 3774 & 3776
For the Appellants	Mr J.H.L. Forrest QC with Mr P.H. Solomon	Wisewoulds
For the Respondent	Mr C.M. Maxwell QC with Mr P.G. Misso	Petersons
In Proceedings No. 3759 & 3760
For the Appellant	Mr C.M. Maxwell QC with Mr P.G. Misso	Petersons
For the Respondents	Mr R.P. Gorton QC with Mr P.H. Solomon	Wisewoulds

________________________________________________________________________________________
VICTORIAN GOVERNMENT REPORTING SERVICE 9603 2404
2^nd Floor, 565 Lonsdale Street, Melbourne

PHILLIPS, J.A. for the Court (ORMISTON, CHERNOV and PHILLIPS, JJ.A.):

The Court has before it four appeals that were listed to be argued together last October. The first, Barwon Spinners v. Podolak, occupied three days in argument largely because some problems thought to be common to all four were explored, but that left no time for the other three cases to be heard. Accordingly they were adjourned to a date to be fixed. Fortunately, arrangements were able to be made for those other three cases to be argued before the same Bench as was originally intended and argument was heard earlier this month. This judgment now deals with all four cases. Each of the four appeals is against a determination in the County Court in a proceeding brought by a worker under s.134AB of the Accident Compensation Act 1985 (“the Act”), seeking the leave that was a necessary precondition in the circumstances to the institution of a common law proceeding against the employer for damages for personal…

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: [2005] VSCA 33
Decision Date: 25 February 2005

CaseChat Overview and Summary

Barwon Spinners Pty Ltd and others were involved in a dispute with Mr Podolak regarding work-related injuries and the right to sue the employer at common law. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the injury Mr Podolak sustained was linked to his employment on or after 20 October 1999, and whether the injury constituted a "serious injury" under the Accident Compensation Act 1985. The court was also required to determine the meaning of "permanent" and "serious" in this context, and whether the statutory prescription for calculating economic loss applied.

The court examined the nature and extent of Mr Podolak's injury, separating the physical, psychological, and psychiatric consequences. The court considered the definition of "serious injury" and whether the consequences of the injury met the criteria for economic loss or pain and suffering. It also assessed the onus of proof for rehabilitation and retraining, and whether employability related to job opportunities. The court directed itself to decide the issues afresh, considering the appellate function under the Accident Compensation Act 1985.

After considering the evidence and arguments, the court determined that Mr Podolak's injury was not linked to his employment on or after 20 October 1999. Consequently, the court found that Mr Podolak was not entitled to sue his employer at common law. The court also concluded that the injury did not constitute a "serious injury" as defined in the Act. The court's decision was based on a comprehensive analysis of the evidence and the statutory provisions.

The final orders of the court were that Mr Podolak's application for leave to sue his employer at common law was dismissed, and that the determination of "serious injury" in respect of the possible common law proceeding was affirmed. The court's decision provided clarity on the interpretation of the relevant provisions of the Accident Compensation Act 1985 and the requirements for a "serious injury" to be established in this context.

Orders