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
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- Case
- [2013] VSCA 326
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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