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Ellis Management Services Pty Ltd v Taylor

Ellis Management Services Pty Ltd v Taylor

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0006

ELLIS MANAGEMENT SERVICES PTY LTD	Appellant
	v
ERIC ROSS TAYLOR	Respondent

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JUDGES	OSBORN and BEACH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 November 2013
DATE OF JUDGMENT	22 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 326
JUDGMENT APPEALED FROM	Taylor v Ellis Management Services Pty Ltd [2012] VCC 1864 (Judge Parrish)

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ACCIDENT COMPENSATION - Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 for leave to commence proceeding for pain and suffering damages only - Application granted - Pain and suffering consequences - Loss of earning capacity consequences - Whether judge below impermissibly relied upon loss of earning capacity consequences in allowing application - Whether conclusion that injury met the very considerable threshold test manifestly erroneous - Adequacy of reasons - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Gorton SC with Ms M Norton	Wisewould Mahony
For the Respondent	Mr C Harrison SC with Mr A Macnab	Slater & Gordon

THE COURT:

Introduction

Eric Ross Taylor, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained in the course of his employment with the appellant, Ellis Management Services Pty Ltd.[1] The application was heard in the County Court, sitting at Geelong, by Judge Parrish on 22, 26 and 28 November 2012.
[1]Initially, the respondent also sought leave to commence a proceeding against John Holland Rail Pty Ltd, but the application against this company was discontinued on 29 May 2012, some six months prior to the commencement of the hearing below.

The respondent relied upon a right arm injury which he alleged he sustained as a result of using a ‘Vibra’ tool to compact screenings beneath sleepers on 25 February 2005. The respondent claimed that this injury satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The application was made in respect of pain and suffering damages only.

On the hearing of the application, the respondent, the respondent’s partner, Fay Coburn Steel, and one of the respondent’s treating general practitioners, Dr Hassan, gave evidence. Each was cross-examined and re-examined. Additionally, various medical reports, diagnostic reports, certificates, letters, video footage of the plaintiff and other documents were tendered.[2]
[2]The material tendered is identified in Annexure A to the reasons for judgment of the judge below.

On 20 December 2012, Judge Parrish gave judgment in favour of the respondent. His Honour ordered:

Leave is granted to the plaintiff pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for pain and suffering damages in relation to a right elbow injury suffered on or about 25 February 2005.

The grounds of appeal

In its notice of appeal, the appellant relies upon the following grounds:

1.In circumstances where the respondent was seeking leave in accordance with s 134AB(17) of the Accident Compensation Act 1985

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: [2013] VSCA 326
Decision Date: 22 November 2013

CaseChat Overview and Summary

Ellis Management Services Pty Ltd, as the insurer of an injured worker, sought to appeal a decision allowing a serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985, which permitted the injured worker, Taylor, to commence a proceeding for pain and suffering damages only. The application was made by Taylor for leave to sue the insurer for damages arising from an injury sustained in the course of employment. The dispute centred around whether the judge in the original decision had properly considered the relevant criteria for allowing the application and whether the conclusion that Taylor's injury met the "very considerable" threshold was manifestly erroneous.

The court was required to determine whether the judge had erred in their assessment by impermissibly relying on loss of earning capacity as a consequence of the injury, and whether the decision that Taylor's injury met the statutory threshold was manifestly wrong. The court also needed to consider the adequacy of the reasons provided by the judge for their decision. The key issue was whether the original decision contained errors of law that warranted the appeal being upheld.

The court found that the judge had not erred in their assessment of the application. The reliance on loss of earning capacity as a consequence of the injury did not render the decision invalid, as it was one of several factors considered in determining the severity of the injury. The court also held that the conclusion that Taylor's injury met the "very considerable" threshold was not manifestly erroneous, as the judge had properly applied the relevant criteria and provided adequate reasons for their decision. The appeal was dismissed, and the original decision allowing the serious injury application was upheld.

Orders