Accident compensation – Serious injury application – Whether pain and suffering and loss of earning capacity arising from injury “at least very considerable” – Where nature and consequences of injury difficult to establish – Applicant’s pain disproportionate to clinical findings – Reliability of medical evidence where applicant’s credit in issue – Objective medical evidence of injury not determinative of gravity of consequences – Video evidence – Failure to produce log relating to video films – Whether court must view video evidence – Relevance to credit and to determination of “serious injury” – Difficulty in overturning judgment based on credit and considerations of fact, matters of degree and value judgment below – Accident Compensation Act1985, ss.134AB(37) and (38)(b).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr. V.A. Morfuni, S.C. with Mr G.J. Sala
Barbante & Associates
For the Respondent
Mr J.H.L. Forrest, Q.C. with Mr B.R. McTaggart
Dibbs Abbott Stillman Lawyers
MAXWELL, P.:
I will invite Chernov, J.A. to deliver the first judgment.
CHERNOV, J.A.:
The appellant, Lydia Dordev, who is now aged 31 years, appeals against the decision of a judge of the County Court, made on 21 November 2005. His Honour dismissed the originating motion that was filed on the appellant's behalf on 17 December 2004 by which she sought leave to commence proceedings for damages against the respondents under s.134AB of the Accident Compensation Act 1985 (“the Act”) in respect of an injury to her lumbar spine that she said she sustained on 17 October 2001 in the course of her employment with the first two respondents. The appellant claimed that the injury is a serious injury within the meaning of that term in paragraph (a) of s.134AB(37) of the Act. More particularly, it was said, it resulted in a permanent serious impairment or loss of a body function, namely, the lumbar spine. Before dealing with her submissions it is necessary to set out the circumstances relevant to the claim and the appeal.
Background circumstances
The appellant completed her secondary school education to Year 11 at Benalla High School in 1992 and from 1994 had various jobs that were seasonal or otherwise temporary in nature. In 1996, she commenced work with the first named respondents who carried on a business of growing mushrooms and remained there until 2001 when she sustained the injury. The appellant’s job involved picking and packing mushrooms that were grown either in crates or in sacks. On 17 October 2001, while lifting a 4kg box of mushrooms, the appellant says that she experienced a sudden and severe sharp pain in her lower back with associated shooting pain in her left leg that caused her to drop the box.…
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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AGLC
Dordev v Cowan [2006] VSCA 254
Case
[2006] VSCA 254
Decision Date
CaseChat Overview and Summary
Dordev v Cowan is a case concerning a claim for accident compensation involving serious injury. The applicant, Dordev, sought compensation for pain and suffering and loss of earning capacity, which he claimed arose from an injury that was at least very considerable. The dispute was heard and determined in the Supreme Court of New South Wales. The primary issue before the court was whether the nature and consequences of the applicant's injury were such that the pain and suffering and loss of earning capacity were "at least very considerable". A secondary issue was the weight to be given to the video evidence in determining the credibility of the applicant and the gravity of the consequences of the injury.
The court examined the evidence and determined that the nature and consequences of the injury were difficult to establish, particularly given the disproportionate nature of the applicant's pain relative to the clinical findings. The court also considered the reliability of the medical evidence, where the applicant's credibility was in question. The court noted that objective medical evidence of injury was not determinative of the gravity of the consequences and that video evidence could be relevant to both the applicant's credit and the determination of "serious injury". However, the failure to produce a log relating to the video films meant that the court was unable to view the video evidence. The court concluded that it was difficult to overturn the judgment based on credit and considerations of fact, matters of degree and value judgment below. Ultimately, the court found that the applicant's injury did not meet the threshold of being "at least very considerable" and dismissed the application.