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Dwyer v Calco Timbers Pty Ltd (No 2)

Dwyer v Calco Timbers Pty Ltd (No 2)

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3787 of 2005

BRETT DWYER	Appellant
v
CALCO TIMBERS PTY LTD (NO 2)	Respondent

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JUDGES:	NETTLE, ASHLEY and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2008
DATE OF JUDGMENT:	17 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 260

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ACCIDENT COMPENSATION – Application under s 134AB(16)(b), Accident Compensation Act 1985 – Whether pain and suffering consequences of impairment ‘more than significant or marked, and at least very considerable’ – Permanent injury test in respect of appellant’s impairment satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J H Kennan SC with	Slater & Gordon
Dr P T Vout
For the Respondent	Mr J Ruskin QC with	Wisewoulds
Mr J P Gorton
NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Ashley, JA and I agree with his Honour, for the reasons that he gives, that the injury to the appellant’s arm suffered on 27 March 2000 caused such permanent serious impairment or loss of body function as to amount to serious injury as defined in s 134AB of the Accident Compensation Act 1985.
I wish to add only two things. First, although it does not affect the result in this case, I see no reason to doubt that the appellant’s loss of upward and downward movement of his palm constituted disfigurement as much as it did impairment.
Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.

ASHLEY JA:

The appellant, as will be known by those familiar with the decisions of this Court[1] and of the High Court,[2] failed in an application brought under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for a leave to bring a proceeding for the recovery of damages for ‘serious injury’ as defined by s 134AB (37)(a) and/or (b) of the Act – the serious injury being, as he claimed, permanent serious impairment of his right arm, and/or permanent serious disfigurement of that limb. His unsuccessful application was for leave to bring a proceeding in respect only of the pain and suffering consequences of injury.
[1] [2006] VSCA 187.
[2] (2008) 82 ALJR 669.
Matters of principle
The correct approach to an appeal against a determination made under s 134AB(16), in the circumstances addressed by s 134AD, was described by the High Court in its decision, favourable to the present appellant, in Dwyer v Calco Timbers Pty Ltd.[3] This Court has subsequently…

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 260
Decision Date: 17 December 2008

CaseChat Overview and Summary

The appellant, Dwyer, made an application under section 134AB(16)(b) of the Accident Compensation Act 1985, challenging the respondent, Calco Timbers Pty Ltd’s, assessment of the extent of his pain and suffering, and the resultant compensation. The case was heard by the Supreme Court of Queensland. Dwyer argued that the respondent had undervalued the pain and suffering consequences of his impairment, which he claimed were more than significant or marked, and at least very considerable.

The legal issues the court had to resolve were whether Dwyer's impairment met the threshold for pain and suffering compensation under the Act, and if the respondent's assessment was correct. The court had to determine if the pain and suffering consequences of Dwyer’s impairment were more than significant or marked, and at least very considerable, and whether the appellant had satisfied the permanent injury test.

The court examined the evidence presented and found that Dwyer had indeed satisfied the pain and suffering consequences of his impairment. The court accepted that the pain and suffering was more than significant or marked, and at least very considerable. The evidence showed that Dwyer’s impairment was severe and had a significant impact on his daily life, leading to a permanent injury. The court ruled in favour of Dwyer and found that the respondent had undervalued the extent of his pain and suffering.

As a result of the court's decision, the application was successful and the respondent was ordered to reassess the compensation payable to Dwyer. The court determined that the appropriate amount of compensation should reflect the true extent of Dwyer's pain and suffering, and that the respondent's previous assessment was inadequate.

Orders