Doolan v Rayners Sawmills Pty Ltd & Anor - [2008] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3794 of 2006

JOHN FRANCIS DOOLAN
	Appellant
v
RAYNERS SAWMILLS PTY LTD AND ALLIANZ AUSTRALIA WORKERS COMPENSATION (VICTORIA) PTY LTD	Respondents

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JUDGES:	NEAVE and KELLAM JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2007 (with subsequent written submissions filed on behalf of the Appellant on 7 October 2008 and on behalf of the Respondents on 22 October 2008)
DATE OF JUDGMENT:	28 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 219

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Accident compensation – Application under s 134AB (16)(b), Accident Compensation Act 1985 – Whether serious injury for purpose of s 134(AB)(16) – Appeal allowed, judgment below set aside, leave granted to appellant to bring proceeding for damages for pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T P Tobin SC with Mr D J N Purcell	Stringer Clark
For the Respondents	Mr R Gorton SC with Mr J Gorton	Lander & Rogers

NEAVE JA:

I have had the advantage of reading the draft judgment of Kellam JA in this matter. I agree with the learned judge, for the reasons that he gives, that the appellant has satisfied the burden of establishing that the lifting incident on 17 February 2000 caused him to suffer an injury to his L5/S1 disc, the pain and suffering consequences of which are, at least, ‘very considerable’.

I am fortified in that view by the fact that the appellant returned to work at Rayners Sawmills Pty Ltd after suffering a back strain in May 1999 and that he continued to perform heavy work lifting timber between 15 June 1999 and the occurrence of the incident on 17 February 2000. In my opinion, there is insufficient evidence to suggest that the motor vehicle accident in which he was involved in June 2000 made any significant contribution to the back condition from which he now suffers. I would, therefore, allow the appeal.

KELLAM JA:

On 5 July 2005 the appellant, John Doolan filed an originating motion in the County Court seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 to bring a proceeding to recover damages for pain and suffering, and loss of earning capacity, in respect of injury said by him to have been suffered in the course of his employment with the first respondent, Rayners Sawmills Pty Ltd (‘Rayners’). The injury alleged to have been suffered by him was to his lower back. It consisted of a lumbar disc lesion with consequential immobility, sciatica and pain.[1]
[1]The full description of the alleged injury was set out in the appellant’s proposed statement of claim pursuant to cl 5 of the Ministerial Directions under s 134AF of the Accident Compensation Act 1985. ie. “Lumbar disc lesion; chronic low back pain, back immobility, referred leg pain, nerve root irritation, sciatica, abdominal pain, anxiety and nervousness”.

On 26 September 2006 a judge of the County Court dismissed the appellant’s application for leave to commence proceedings against Rayners.

By notice of…

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: [2008] VSCA 219
Decision Date: 28 November 2008

CaseChat Overview and Summary

The appellant, Doolan, brought an appeal against the respondent, Rayners Sawmills Pty Ltd, seeking a declaration of entitlement to a serious injury certificate under the Accident Compensation Act 1985. The primary judge of the Supreme Court of Queensland rejected the application, ruling that Doolan's injuries did not amount to a "serious injury" as defined in section 134AB(16) of the Act. Doolan's appeal was heard by the Court of Appeal, which was tasked with determining whether the injuries sustained by Doolan met the criteria for a "serious injury" as required by the Act.

The central legal issue before the court was whether Doolan's injuries met the statutory definition of a "serious injury" within the meaning of section 134AB(16) of the Act. The court was required to consider the criteria for a "serious injury" as outlined in the Act, which includes injuries that cause significant disability, disfigurement, or a combination of both. The court needed to evaluate the evidence presented and determine whether Doolan's injuries met these criteria.

The Court of Appeal found that the primary judge had erred in his interpretation of the statutory criteria for a "serious injury." The primary judge had failed to consider the impact of Doolan's injuries on his daily life and had not adequately assessed the extent of the disability caused by the injuries. The Court of Appeal concluded that Doolan's injuries did meet the criteria for a "serious injury" as defined in the Act. The appeal was allowed, and the judgment of the primary judge was set aside. The Court of Appeal granted Doolan leave to bring a proceeding for damages for pain and suffering, allowing him to pursue his claim for compensation under the Act.

The Court of Appeal's final orders included setting aside the primary judge's judgment and allowing the appeal. Doolan was granted leave to bring a proceeding for damages for pain and suffering, providing him with the opportunity to seek compensation for the injuries he sustained. The decision emphasised the importance of a thorough assessment of the impact of injuries on an individual's life when determining whether they meet the criteria for a "serious injury" under the Accident Compensation Act 1985.

Orders