Dean v Crossway Holdings Pty Ltd - [2011] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3866 of 2009

WILLIAM THOMAS DEAN	Appellant
	v
CROSSWAY HOLDINGS PTY LTD
	Respondent

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JUDGES	NEAVE, MANDIE AND HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 May 2011
DATE OF JUDGMENT	30 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 198
JUDGMENT APPEALED FROM	Dean v Crossway Holdings Pty Ltd (Unreported, County Court of Victoria, Judge O'Neill, 25 September 2009)

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ACCIDENT COMPENSATION – Appeal from unsuccessful application to commence proceedings to recover damages for pain and suffering and loss of earning capacity – Accident Compensation Act 1985, s 134AB(16)(b) – Injury sustained in first incident followed by more serious injury in second incident – Claim in respect of injury arising from second incident already settled – Whether first injury a serious injury – Whether first incident resulted in loss of earning capacity of 40 per cent or more – Insufficient evidence to assess appellant’s loss of earning capacity in suitable employment – Appeal allowed in part.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R P Gorton QC with Mr T J Seccull	Slater & Gordon Lawyers
For the Respondent	Mr M F Wheelahan SC with Mr S A O’Meara	Herbert Geer Lawyers

NEAVE JA:

The appellant, William Thomas Dean, was employed on his family’s farm by the respondent, Crossway Holdings Pty Ltd (‘Crossway Holdings’). On 6 August 2001, he injured his back and neck while lifting and stacking 50 kilogram bags of potatoes (the ‘first incident’). On 20 May 2002, he suffered an injury to his lumbar spine, while working on the farm (the ‘second incident’). The insurer, as the agent of the Victorian WorkCover Authority, issued a certificate consenting to the bringing of common law proceedings to recover damages for the injury to the appellant’s lumbar spine, arising out of the second incident, on the basis that this was a serious injury.[1] This common law claim was settled by the insurer.
[1]Accident Compensation Act 1985, s 134AB(16)(a)(ii).

The Authority did not issue a similar certificate in respect of the injury arising from the first incident. On 25 September 2009, a County Court judge refused the appellant leave to commence proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 (the ‘Act’) to recover common law damages for pain and suffering and loss of earning capacity caused by the first incident, on the basis that it was not a serious injury as defined by ss 134AB(37) and (38) of the Act.[2] The appellant now appeals against that decision.
[2]These provisions are set out at [71] below.

Although the written submissions filed on behalf of Crossway Holdings raised questions about the nature of the appeal, both counsel ultimately accepted that this appeal is governed by s 134AD of the Act, which requires this Court to ‘decide for itself whether the injury is a serious injury’.

The evidence

The two main issues in contention before the judge below were:

(1)whether the appellant injured his lumbar spine as well as his…

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: [2011] VSCA 198
Decision Date: 30 June 2011

CaseChat Overview and Summary

Dean sought to recover damages for pain and suffering and loss of earning capacity following two incidents. The first incident occurred in 2008 and the second in 2010. Dean's claim in respect of the 2010 incident was settled. Dean applied for leave to commence proceedings under the Accident Compensation Act 1985, but the application was dismissed. Dean appealed that decision. The appeal centred on whether the 2008 incident resulted in a serious injury and whether that incident resulted in a loss of earning capacity of 40 per cent or more. Dean argued that there was no need to consider the 2010 incident because the 2008 incident alone was sufficient to establish the necessary criteria for the application to be heard. Crossway Holdings argued that the 2008 incident did not result in a serious injury. The court held that there was insufficient evidence to assess Dean's loss of earning capacity in suitable employment. The appeal was allowed in part. The court found that the 2008 incident did result in a serious injury, but that the evidence was insufficient to determine whether Dean's loss of earning capacity was 40 per cent or more.

Orders