Burgess v Y-Trans Pty Ltd - [2010] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3923 of 2008

PETER BURGESS
	Appellant
v
Y-TRANS PTY LTD and VICTORIAN WORKCOVER AUTHORITY	First Respondent
	Second Respondent

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JUDGES:	BUCHANAN and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2010
DATE OF JUDGMENT:	26 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 28
JUDGMENT APPEALED FROM:	Burgess v Y-Trans Pty Ltd [2008] VCC 1482 (Judge Campbell)

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ACCIDENT COMPENSATION – Serious injury application – s 134AB Accident Compensation Act 1985 – Primary judge not satisfied that compensable injury established – Appellant and treating doctor both regarded as unreliable – Whether decision ‘glaringly improbable’ or ‘contrary to compelling inferences’ – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R W McGarvie SC with Mr I D McDonald	Nowicki Carbone & Co
For the Respondents	Mr J Ruskin QC with Mr D Masel	Thomson Playford Cutlers

BUCHANAN JA:

I agree with Weinberg JA, for the reasons his Honour has stated, that the appeal should be dismissed.

WEINBERG JA:

This appeal concerns a refusal of leave to bring proceedings for the recovery of damages in respect of injury pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) (‘the Act’). The primary judge concluded that the appellant had failed to establish the existence of a compensable injury. The appeal is against that finding. As such, it does not fall within the scope of s 134AD of the Act, but is to be determined instead as a traditional civil appeal, pursuant to s 74 of the County Court Act 1958 (Vic).[1] It follows that his Honour’s decision, which turned largely on the credibility of the appellant, as compared with that of his treating doctor, is not to be overturned unless this Court is persuaded that the decision was ‘glaringly improbable’, or ‘contrary to compelling inferences’.[2]
[1]Kovacic v Henley Arch Pty Ltd [2009] VSCA 56, [4] (Ashley JA).
[2]Fox v Percy (2003) 214 CLR 118, 128 (Gleeson CJ, Gummow and Kirby JJ). See also Warren v Coombes (1979) 142 CLR 531, 551; Jones v Hide (1989) 63 ALJR 349, 351-2; Abalos v Australian Postal Commission (1990) 171 CLR 167, 179; and Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 and 482-3.

Background

The appellant had for many years been employed as a truck driver. From 1999 he worked for PPB Freighters Pty Ltd, a company that he himself had established to do transport contracting work. Most of that work was done for Collex Pty Ltd (‘Collex’), a company involved in waste collection and disposal.

In September 2004, the appellant formed a new company, Y-Trans Pty Ltd, which is the first respondent to this proceeding. The appellant is its sole director and shareholder. The new company took over the business of PPB Freighters Pty Ltd, and employed the appellant to provide services to Collex.

Y-Trans Pty Ltd was obliged, under its contract with Collex, to provide a truck suitable for collecting…

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: [2010] VSCA 28
Decision Date: 26 February 2010

CaseChat Overview and Summary

Burgess sought compensation for a serious injury sustained in an accident, applying under section 134AB of the Accident Compensation Act 1985. The primary judge dismissed the application, finding that the injury was not established. Both Burgess and his treating doctor were deemed unreliable witnesses. The appeal was directed to whether the primary judge's conclusion was 'glaringly improbable' or 'contrary to compelling inferences'.

The appeal centred on the assessment of the primary judge's findings regarding the credibility of Burgess and his doctor. The court examined whether the primary judge's decision was so improbable or contrary to compelling inferences that it should be set aside. The appeal court considered the primary judge's detailed findings and the basis for deeming Burgess and his doctor unreliable.

The appeal court found that the primary judge's findings were not so flawed as to warrant interference. The primary judge had carefully considered the evidence and provided substantial reasons for their conclusions. The court held that the primary judge's decision was not 'glaringly improbable' or 'contrary to compelling inferences', thus dismissing the appeal.

No further orders were made, affirming the primary judge's decision.

Orders