Day v Electronik Fabric Makers (Vic) Pty Ltd - [2004] VSC 24

tHIS

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5608 of 2003

RAELENE DAY	Appellant
v
ELECTRONIK FABRIC MAKERS (VIC) PTY LTD & ALLIANZ WORKERS COMPENSATION (VIC) LTD	Respondents

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2004
DATE OF JUDGMENT:	16 February 2004
CASE MAY BE CITED AS:	Day v Electronik Fabric Makers (Vic) Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 24

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Accident compensation – Workers compensation – Injury – Reactive depressive disorder – Whether reactive depressive disorder an “injury” - Whether employment with the first respondent was a significant contributing factor - Accident Compensation Act 1985, ss.5(1), 5 (1B) and 82(1)

Appeal – Appeal from Magistrates’ Court – Whether Magistrate erred in law in failing to hold that employment with the first respondent was a significant contributing factor – Magistrates Court Act 1989, s.109

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.R. McCredie	Lennon Settle
For the Respondents	Mr J.H.L. Forrest QC with Mr J.L. Batten	Lander & Rogers

HIS HONOUR:

This is an appeal from a final order of the Magistrates’ Court at Melbourne made on 2 April 2003 whereby the appellant’s claim to be entitled to compensation pursuant to s. 82(1) of the Accident Compensation Act 1985 was dismissed.

The appellant was born on 18 April 1954 and at relevant times was 48 years of age. She left school at 17 years of age after obtaining her leaving certificate and thereafter worked more or less continuously in a succession of jobs in sales and related activities. Most of her positions were as an employee but between July 1996 and 1998 she endeavoured to establish a business on her own account, called “Photo Watch”. Unfortunately it ended in failure and as a result she lost the house in which she was living and was left with debts of some $25,000.

The appellant was also married three times: the first time, between 1973 and 1976, when she and her first husband divorced; the second time between 1986 and 1995, when her second husband died of cancer; and the third time, beginning in 1999, so that she was still married at the time of the events in issue. She had one child from her first marriage, who was approximately 30 years old and had children of her own at the time of the events in issue, and who was something of a problem for the appellant.

The first respondent was at relevant times in the business of manufacturing and selling clothes and fabrics. The business had once been owned (at least indirectly) and managed by Hymie Wein, but some time before the events in issue it had encountered financial difficulties and was put into receivership. While the business was in receivership it was conducted by Carmel Flannery on behalf of the receiver. Hymie Wein’s son, Jonathan Wein, then purchased the business from the receiver and re-established it in the first respondent under his own direction.…

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: [2004] VSC 24
Decision Date: 16 February 2004

CaseChat Overview and Summary

The appeal in Day v Electronik Fabric Makers (Vic) Pty Ltd involved a dispute between the appellant, Day, and the first respondent, Electronik Fabric Makers (Vic) Pty Ltd. The appellant sought workers' compensation for a reactive depressive disorder, claiming it was an injury sustained due to his employment with the first respondent. The case was heard in the Court of Appeal of the Supreme Court of Victoria, following a decision from the Magistrates' Court that did not favour the appellant's claim.

The legal issues in this case revolved around the interpretation and application of the Accident Compensation Act 1985. Specifically, the court had to determine whether the appellant's reactive depressive disorder constituted an "injury" as defined by the Act and whether the employment with the first respondent was a significant contributing factor to the condition. The appellant argued that the Magistrates' Court erred in law by not recognising that his employment was a significant contributing factor to his condition.

The Court of Appeal examined the statutory provisions of the Accident Compensation Act 1985, particularly sections 5(1), 5(1B), and 82(1), which define the scope of compensable injuries. The court found that reactive depressive disorder could be considered an injury if it resulted from an event or series of events that were reasonably foreseeable and occurred in the course of employment. The appeal hinged on whether the Magistrates' Court correctly assessed the significance of the appellant's employment as a contributing factor. The Court of Appeal concluded that the Magistrates' Court did not err in its legal assessment and upheld the original decision.

The final orders of the Court of Appeal were to dismiss the appeal, affirming the decision of the Magistrates' Court. The appellant's claim for workers' compensation in respect of his reactive depressive disorder was denied, as the court found that the employment was not a significant contributing factor to the condition. The appeal was dismissed with no orders for costs.

Orders