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Brumar (Vic) Pty Ltd v Norris

Brumar (Vic) Pty Ltd v Norris

Case [2010] VSCA 206 25 August 2010

Workplace Injury

Psychiatric Injury

Assessment of Damages

Issue Estoppel

Accident Compensation Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

BRUMAR (VIC) PTY LTD	S APCI 2009 3783
BRUMAR (VIC) PTY LTD	Appellant
v
PATRICIA NORRIS	Respondent
- and -
- and -	S APCI 2009 3875
FIONA HELEN BROWN	Plaintiff
v
MAURICE BLACKBURN CASHMAN	Defendant

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JUDGES	ASHLEY and MANDIE JJA and ROSS AJA
WHERE HELD	MELBOURNE
DATES OF HEARING	2 and 3 February 2010
DATE OF JUDGMENT	25 August 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 206
JUDGMENT APPEALED FROM	[2009] VSC 218 (Beach J) (Brumar v Norris)
SPECIAL CASE STATED	County Court (Judge Lacava) 22 October 2009, unreported (Brown v Maurice Blackburn Cashman)

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Brumar (Vic) Pty Ltd v Norris:

ACCIDENT COMPENSATION – Workplace injury – Psychiatric injury – Damages – Assessment of damages – Leave granted to plaintiff to commence proceeding under s 134AB(16)(b), Accident Compensation Act 1985 – Consequences in later proceeding at common law for damages – Ambit of issue estoppel – Appeal dismissed.

Brown v Maurice Blackburn Cashman:

ACCIDENT COMPENSATION – Case Stated – Workplace injury – Psychiatric injury – Opinion of Medical Panel pursuant to s 67, Accident Compensation Act 1985 that degree of impairment in excess of 30 per cent – Injury deemed to be serious injury pursuant to s 134AB(15), Accident Compensation Act 1985 – Consequences for later proceeding at common law for damages.

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Appearances:	Counsel	Solicitors
Re S APCI 2009 3783
For the Appellant	Mr M F Wheelahan SC and Mr S A O’Meara	Thomson Playford Cutlers
For the Respondent	Mr A G Uren QC and Mr A D B Ingram	Clark Toop & Taylor
Re S APCI 2009 3875
For the Plaintiff	Mr P Tree SC and Mr S R McCredie	Lennon Mazzeo Lawyers
For the Defendant	Mr M F Wheelahan SC and Mr S A O’Meara	Minter Ellison

ASHLEY JA:

Before the Court, in Brumar (Vic) Pty Ltd v Norris, (‘Norris’), is an appeal against a judgment for damages entered in favour of the respondent in the Trial Division on 9 June 2009. It raises, inter alia, a question as to the consequences, in a proceeding at common law for damages, of a decision made under s 134AB (16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) granting leave to the plaintiff to commence that proceeding.

Also before the Court, in Brown v Maurice Blackburn Cashman (‘Brown’), there is a special case stated by a County Court judge pursuant to s 76(1) of the County Court Act 1958. It raises a question as to the consequences, in a proceeding at common law for damages, of it being deemed, pursuant to s 134AB(15) of the Act, that the plaintiff suffers from a serious injury.

In each case, though in different ways, s 134AB of the Act as it stood prior to amendment by Act No 9/2010 falls for consideration. One of the amendments was to sub-s (19), which in its unamended form is of central importance in Norris.

Another section of the Act which requires consideration, in this instance in the…

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 Brumar (Vic) Pty Ltd v Norris

Details

AGLC: Brumar (Vic) Pty Ltd v Norris [2010] VSCA 206
Case: [2010] VSCA 206
Decision Date: 25 August 2010

CaseChat Overview and Summary

Brumar (Vic) Pty Ltd sought leave to appeal against the decision of Norris to allow Brumar (Vic) Pty Ltd to commence a proceeding under section 134AB(16)(b) of the Accident Compensation Act 1985. The dispute concerned the assessment of damages for a workplace-induced psychiatric injury. The Supreme Court of Victoria had to decide whether the previous decision of the Medical Panel under section 67 of the Act, which deemed the degree of impairment to be in excess of 30 per cent, constituted a serious injury within the meaning of section 134AB(15) of the Act, and the consequences this had for a subsequent proceeding at common law for damages.

The central legal issue was whether the consequences of the panel's decision under section 67 of the Act, which deemed the injury to be a serious injury, could be used as an issue estoppel in a subsequent common law proceeding for damages. The court had to consider whether the decision of the Medical Panel, which concluded that the injury was a serious one, could be binding on the parties in a later proceeding at common law.

The court held that the decision of the Medical Panel was binding on the parties in the later proceeding at common law for damages. The court found that the panel's determination that the degree of impairment was in excess of 30 per cent, and therefore constituted a serious injury, was conclusive and could not be challenged in the subsequent proceeding. The court dismissed the appeal, upholding the decision of the lower court that the issue of the degree of impairment and the classification of the injury as serious were issues that were finally determined by the panel and could not be relitigated in the common law proceeding.

The court's decision confirmed that the consequences of a Medical Panel's determination under the Accident Compensation Act 1985 could be binding in a later proceeding at common law. This decision underscored the importance of the statutory scheme in determining the extent of damages for workplace injuries, and the limitations on parties in later proceedings to challenge the findings of the Medical Panel.

Orders