Dunstan v Amcor Ltd - [2000] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 5210 of 1999

LEESA MAREE DUNSTAN

Appellant

AMCOR LIMITED

Respondent

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JUDGES:	WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2000
DATE OF JUDGMENT:	7 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 9

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Accident compensation – Appeal from County Court against judge’s assessment of lump sum and pain and suffering pursuant to ss. 98 and 98A of Workers Compensation Act – Limits of appeal rights pursuant to s.52 of the Act discussed – Meaning of “question of law arising during the proceedings” discussed.
Accident Compensation Act 1985, ss. 98, 98A and 52.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.F. Goldberg	Maurice Blackburn & Co.
For the Respondent	Mr. M. O’Loghlen Q.C. with Mr. J. Batten	Mills Oakley Lawyers

WINNEKE, P.:

Lisa Marie Dunstan (the "appellant"), has appealed to this Court pursuant to s.52 of the Accident Compensation Act 1985 against judgment and orders made by the County Court on 14 December 1998 and, in particular, against those parts of the orders pursuant to which the judge assessed damages for "pain and suffering" pursuant to s.98A of the Act at $5,000.

The appellant had, at all material times, been employed by the respondent as a mill-hand at one of the respondent's timber mills in Traralgon. In November of 1996 she had been injured at work when she was struck on the inside of the left foot by one of the prongs of a fork on a timber stacking machine. In the proceedings before the County Court she asked the Court to assess lump sum compensation for partial permanent loss of the use of the foot pursuant to s.98 of the Act and a sum for pain and suffering pursuant to s.98A. Having heard the evidence, his Honour assessed the loss of use of the foot at 20 per cent and, applying the figures in the table, awarded a sum of $13,319.80. No complaint is made in respect of this award. The complaint is now limited to the award of $5,000 for pain and suffering, assessed pursuant to s.98A of the Act.

Ss 98 and 98A of the Act operate in tandem. S. 98 allows a claimant to recover a lump sum of compensation for a permanent loss of a body part assessed as a percentage of a statutory figure in accordance with the table set out in the section. Total loss of a foot carries with it an entitlement to a lump sum of a little more than $66,500. In this case, where the loss was assessed as 20 per cent of the total loss of the foot, the claimant was entitled to receive a lump sum of $13,319. That amount was awarded by the judge and, as I have said, no complaint is made in respect of it.

S. 98A(1) provides, so far as relevant, that:

"A worker who has suffered an injury mentioned in the Table in s.98 ...…

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.

Continue reading Dunstan v Amcor Ltd

Details

AGLC: Dunstan v Amcor Ltd [2000] VSCA 9
Case: [2000] VSCA 9
Decision Date: 7 February 2000

CaseChat Overview and Summary

Dunstan sought damages for injuries sustained in the course of his employment. The matter was heard in the County Court, with Dunstan appealing the judge’s assessment of his lump sum and pain and suffering awards. The appeal centred on whether the judge had erred in his assessment of these components of compensation. The case hinged on the interpretation of sections 98, 98A and 52 of the Workers Compensation Act, specifically regarding the scope of appeal rights and the definition of a "question of law arising during the proceedings."

The court was required to determine the boundaries of the appeal rights provided under section 52 of the Act and whether the judge's assessment of the compensation constituted a question of law. The court also needed to examine the meaning and application of sections 98 and 98A in the context of the judge's decisions. The central issue was whether the appeal was permissible under the Act and whether the judge had indeed erred in his assessment.

The court found that the appeal was not permissible as it did not involve a question of law arising during the proceedings. It held that the judge's assessment of the lump sum and pain and suffering awards did not constitute a question of law but rather a matter of factual determination and judicial discretion. The court clarified that section 52 of the Act limits the appeal to questions of law and not to the merits of the assessment itself. The judge’s assessment, therefore, remained within the bounds of his discretion and was not subject to appeal on the grounds presented.

The court dismissed the appeal and upheld the County Court's assessment of the lump sum and pain and suffering awards. The decision underscored the importance of distinguishing between questions of law and questions of fact or discretion in the context of workers' compensation appeals.

Orders