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Dwyer v Calco Timbers Pty Ltd

Dwyer v Calco Timbers Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3787 of 2005

BRETT DWYER
BRETT DWYER	Appellant
v.
CALCO TIMBERS PTY LTD	Respondent

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JUDGES:	MAXWELL, P. and EAMES and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2006
DATE OF JUDGMENT:	8 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 187

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ACCIDENT COMPENSATION – Appeal – Application under s.134AB Accident Compensation Act 1985 – Serious injury test – Claim as to permanent serious impairment of right upper limb, alternatively permanent serious disfigurement of right upper limb – Whether pain and suffering consequence “at least very considerable” – Nature of appeal – Barwon Spinners Pty Ltd v. Podolak [2005] VSCA 33 – Adequacy of reasons – Accident Compensation Act 1985, ss.134AB, 134AD.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. Kennan, S.C. with Mr P.G. Misso	Slater & Gordon
For the Respondent	Mr J.H.L. Forrest, Q.C. with Mr J.P. Gorton	Wisewoulds

MAXWELL, P.:

I will invite Eames, J.A. to deliver the first judgment.

EAMES, J.A.:

This is an appeal against a decision of a judge of the County Court who, upon hearing an application under s.134AB of the Accident Compensation Act 1985, refused leave to the plaintiff/appellant to issue common law proceedings with respect to a workplace injury to his right upper limb suffered on 27 March 2000.

The plaintiff made his application for leave under two headings. First, under sub-s.134AB(37)(a) of the Act, submitting that he had suffered a permanent serious impairment of the function of his right upper limb; and, alternatively, under sub-s.37(b) of the Act, contending that he had suffered permanent serious disfigurement of his right upper limb. The plaintiff's application was limited to pain and suffering consequences flowing from the injury. The defendant submitted that the impairment resulting from the plaintiff's injury to his right upper limb did not satisfy the definition of serious injury under either head of claim.

As to the facts concerning the happening of the injury and the medical treatment of the appellant, I will adopt paragraphs 9 to 15 of the summary which has been filed in this case, which is a very helpful and thorough document:

“9.The plaintiff was born in February 1964. At the date of the hearing of his application for serious injury he was 41 years of age.
10.He was employed by the defendant as a Driver. His job required him to operate a semitrailer which had a crane fixed to it. On 27 March 2000 he drove the semitrailer to a point where it was to be used in the task of unloading. The boom of the crane unfolded in three sections, with each section being unfolded one at a time. As the plaintiff was engaged in this task a catch/latch holding the three sections of the boom together failed causing the entire boom to fall on to his right arm.
11.The plaintiff suffered an extensive and at least initially a severe wound to his right forearm. He was taken to the Geelong Hospital. He had…

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: [2006] VSCA 187
Decision Date: 8 September 2006

CaseChat Overview and Summary

The case of Dwyer v Calco Timbers Pty Ltd involved an appeal against a decision of the Workers Compensation Tribunal of Victoria, concerning a claim for compensation under the Accident Compensation Act 1985. The applicant, Dwyer, sought compensation for what was claimed to be a permanent serious impairment of his right upper limb or, in the alternative, permanent serious disfigurement of the same limb. The respondent, Calco Timbers Pty Ltd, contested the claim, arguing that the applicant’s injuries did not meet the threshold for a serious injury as defined by the Act.

The legal issues at the core of the appeal revolved around the interpretation and application of the "serious injury" test under the Accident Compensation Act 1985. Specifically, the court needed to determine whether the pain and suffering experienced by the applicant was "at least very considerable," a key criterion for qualifying as a serious injury. The appeal also examined the adequacy of the reasons provided by the Tribunal in its decision-making process, referencing relevant case law such as Barwon Spinners Pty Ltd v Podolak. The court was tasked with ensuring that the Tribunal’s decision was supported by appropriate legal reasoning and factual findings.

In its judgment, the Court of Appeal emphasised the importance of clear and comprehensive reasoning when applying the statutory criteria for serious injury. The court found that the Tribunal had failed to adequately address the specific criterion of "pain and suffering" being "at least very considerable." This oversight rendered the Tribunal’s decision insufficient in terms of the statutory requirements under sections 134AB and 134AD of the Act. Consequently, the Court of Appeal remitted the matter back to the Tribunal for further consideration and redetermination, ensuring that all necessary criteria were properly examined and justified in light of the evidence presented.

Orders