Daylesford Sawmill Pty Ltd v Cane - [2000] VSC 431

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6722 of 1999

DAYLESFORD SAWMILL PTY LTD	Appellant
v
ROSLYN CANE	Respondent

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JUDGE:	Kellam J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2000
DATE OF JUDGMENT:	23 October 2000
CASE MAY BE CITED AS:	Daylesford Sawmill Pty Ltd v Cane
MEDIUM NEUTRAL CITATION:	[2000] VSC 431

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Workers Compensation – appeal from decision of Magistrate – whether worker made “every reasonable effort to return to work in suitable employment” – Accident Compensation Act 1985 (as amended up to 1 January 1999) – ss.5, 93, 93CA, 114

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M. O'Loghlen QC with Mr J. Goldberg	Mills Oakley
For the Respondent	Mr N. Moshinsky QC with Mr P. Coish	Slater & Gordon

HIS HONOUR:

Daylesford Sawmill Pty Ltd ("Daylesford") appeals from orders made on 9 August 1999 at the Magistrates' Court, Melbourne. Those orders directed Daylesford to make weekly payments of compensation under the Accident Compensation Act 1985 ("the Act") to Roslyn Cane ("Ms Cane") from 12 June 1998 and to continue to do so in accordance with law.

Background

On 17 December 1998 Ms Cane filed a complaint in the Magistrates' Court seeking compensation under the Act for injuries suffered in the course of her employment with Daylesford.

By statement of claim annexed to the complaint she alleged that on 3 February 1998 she suffered injury to her neck, back and left arm in the course of her employment. By its defence filed in response to the statement of claim Daylesford admitted Ms Cane suffered injury to her neck and left arm on the date alleged.

Ms Cane submitted her claim for compensation to Daylesford shortly after sustaining injury and her claim was accepted and compensation was paid to her.

Subsequent to suffering injury Ms Cane was absent from work until 6 February 1998 when she returned to work on modified duties involving no lifting or looking down. On 26 February she had an exacerbation of pain and was then off work until 24 March 1998 when she returned to her employment with Daylesford and performed restricted duties. She continued in such employment until 9 April 1998 when the Easter holidays commenced. She did not return to work subsequent to that date. On 26 May 1998 Daylesford gave notice to Ms Cane of its intention to terminate weekly payments. Ms Cane referred the matter to the WorkCover Conciliation Service but, nevertheless, her weekly payments were terminated as from 12 June 1998.

The defence filed in the Magistrates' Court proceeding by Daylesford alleged that the plaintiff was not entitled to weekly payments as she had failed to make every reasonable effort to return to work in suitable employment at the worker's place of employment in co‑operation with the employer.

Accordingly, there was no issue before the magistrate as to whether or not Ms Cane had suffered injury in the course of her employment. The issue before the magistrate was whether or not Ms…

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: [2000] VSC 431
Decision Date: 23 October 2000

CaseChat Overview and Summary

The case involved Daylesford Sawmill Pty Ltd as the appellant and Cane as the respondent. The dispute centred around a workers' compensation claim brought by Cane following an injury at work. The initial decision was made by a Magistrate and was now under appeal. The appeal pertained to the interpretation and application of specific provisions within the Accident Compensation Act 1985, particularly sections 5, 93, 93CA, and 114, regarding Cane's entitlement to compensation.

The court was tasked with determining whether Cane had indeed made every reasonable effort to return to work in suitable employment as required by section 93CA of the Act. This provision is pivotal in assessing whether an injured worker is eligible for ongoing compensation. The appellant argued that Cane had not fulfilled this requirement, thereby invalidating his claim. The respondent, on the other hand, maintained that he had made sufficient efforts to return to suitable employment. The court had to evaluate the evidence and arguments presented by both parties to ascertain whether Cane's actions were in line with the legislative mandate.

The court carefully considered the provisions of the Act and the evidence provided. It was determined that Cane had indeed made every reasonable effort to return to suitable employment, despite the appellant's assertions to the contrary. The court found that Cane's actions were consistent with the requirements set forth in section 93CA. Consequently, the appeal was dismissed, and the original decision in favour of Cane was upheld. The respondent was entitled to the compensation as initially awarded.

Orders