ACCIDENT COMPENSATION – Back injury – Appellant denied leave in County Court to bring an action for common law damages against employer because appellant failed to give accurate medical history to physicians – Adverse finding by trial judge as to appellant’s credibility – Whether accident at work caused injury – Whether a serious injury – Appeal allowed because other evidence sufficient to establish accident at work caused injury – Case remitted to County Court – Accident Compensation Act 1985, s 134AB.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P F O’Dwyer SC Mr G Wicks
Maurice Blackburn Cashman
For the Respondent
Mr J Ruskin QC Mr J P Gorton
Dibbs Abbott Stillman
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Neave JA. I agree with her Honour that the appeal should be allowed and I do so for the reasons which her Honour gives.
BUCHANAN JA:
I agree with Neave JA that the appeal should be allowed for the reasons stated by her Honour.
The failure of the appellant to inform most, though not all, of the medical practitioners who examined him, of past injuries to his lower back and his silence as to previous back problems in his evidence in the County Court may have been due to the appellant’s limited ability to communicate. I would accept, however, that the trial judge, having seen and heard the appellant being cross-examined, was entitled to conclude that the appellant was not a credible witness.
Nevertheless, there was potent evidence, which was not affected by any want of credibility on the part of the appellant, that on 26 October 2001 he sustained injury to his lower back which was a serious injury within the meaning of s 134AB(37)(a) of the Accident Compensation Act1985.
It was not in issue that the appellant felt pain in his back while manoeuvring a large trough at work on 26 October 2001 and that he reported he had injured his
back. In the ensuing weeks the appellant complained to doctors about lower back pain, and the treatment he sought and received was consistent with injury to his lower back. The results of examinations and diagnostic tests made soon after the accident confirmed the existence of the injury. Finally, the appellant, who had demonstrated a strong desire to keep on working despite episodes of back pain, ceased to work at the end of 2001 and the consensus of the medical evidence was that he was no longer capable of performing manual work and was permanently incapacitated.
The trial judge failed to deal with this body of evidence, which, in my view, bore upon the question whether, on 26 October 2001,…
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
AGLC
Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104
Case
[2007] VSCA 104
Decision Date
CaseChat Overview and Summary
The case of Cakir v Arnott's Biscuits Pty Ltd involved a claim for common law damages against the employer for a back injury sustained by the appellant. The appellant, Cakir, had previously been denied leave to bring an action in the County Court. The central dispute was whether the accident at work caused the appellant's injury and if the injury was serious enough to warrant compensation. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.
The legal issues that the court had to decide included whether the trial judge was correct in finding that the appellant's failure to provide an accurate medical history to the physicians led to an adverse finding on the appellant's credibility. Another issue was whether the appellant's injury was caused by the accident at work and whether it qualified as a serious injury under the Accident Compensation Act 1985. The court also had to consider if there was sufficient evidence to establish that the accident at work caused the injury.
The Court of Appeal found that the trial judge's adverse finding on the appellant's credibility was not justified, and there was other evidence that was sufficient to establish that the accident at work caused the injury. The court held that the appellant's failure to provide an accurate medical history did not necessarily mean that the appellant's evidence was unreliable. The court also found that the injury was serious enough to warrant compensation under the Accident Compensation Act 1985. The appeal was allowed, and the case was remitted to the County Court for further proceedings.
The final orders of the court were that the appeal was allowed, and the case was remitted to the County Court for further proceedings. The court did not provide any specific monetary compensation in its judgment but indicated that the appellant's claim for common law damages could proceed if the necessary evidence was provided.