Forssell v CIP Constructions (Australia) Pty Ltd - [2020] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0052

JUSTIN FORSSELL	Applicant
v
CIP CONSTRUCTIONS (AUSTRALIA) PTY LTD (ACN 105 081 865) (formerly known as COMMERCIAL & INDUSTRIAL PROPERTY PTY LTD)	Respondent

---

JUDGES:	BEACH, KYROU and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2020
DATE OF JUDGMENT:	27 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 304
JUDGMENT APPEALED FROM:	[2020] VCC 627 (Judge P Ginnane)

---

WORKPLACE ACCIDENT – Application for leave to commence proceedings for pain and suffering damages for serious injury – Whether applicant suffered permanent severe mental or permanent severe behavioural disturbance or disorder – Judge made adverse credit finding on erroneous factual basis – Judge found that applicant failed to ‘disentangle’ physical and psychological contributions to mental disorder – No legal requirement for disentanglement – Workplace Injury Rehabilitation and Compensation Act 2013 ss 325(1), (2), 335(2), (3), (5) – Appeal allowed – Proceeding remitted to County Court for rehearing by another judge.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr P A Czarnota	Slater and Gordon Ltd Lawyers
For the Respondent	Mr S A O’Meara QC with Mr M J Hooper	Russell Kennedy Lawyers

BEACH JA
KYROU JA
OSBORN JA:

Introduction and summary

On 19 May 2020, a judge of the County Court dismissed the applicant’s application for leave to commence proceedings for the recovery of pain and suffering damages for a serious injury sustained in the course of his employment with the respondent.[1] The application was brought pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’).
[1]Forssell v Commercial & Industrial Property Pty Ltd [2020] VCC 627 (‘Reasons’). The respondent is now known as CIP Constructions (Australia) Pty Ltd.

Originally, the applicant relied on both paras (a) and (c) of the definition of ‘serious injury’ in s 325(1) of the Act, namely, ‘permanent serious impairment or loss of a body function’ (para (a)) and ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ (para (c)). Following a determination by a medical panel that the applicant’s physical injury to his lower back had resolved, he relied solely upon para (c).

The judge decided that the applicant had failed to establish the requirements of para (c). The judge’s reasons for his decision included the following findings:

(a)the applicant’s oral evidence that he had seen his treating psychiatrist after September 2019 was not supported by any documentary evidence and was false; and
(b)the applicant had failed to ‘disentangle’ the physical and psychological contributions to his mental disorder.

Contrary to these findings, there were two documents in evidence that showed that the applicant had seen his treating psychiatrist on 25 February 2020 and disentanglement was not legally required.

The applicant has sought leave to appeal against the judge’s decision on the grounds that he erred in making the above findings.

For the reasons that follow, the application for leave to appeal will be granted and the appeal allowed.

Relevant statutory…

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.

Keep reading for free

Create a free CaseChat account to read Forssell v CIP Constructions (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSCA 304
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case of Forssell v CIP Constructions (Australia) Pty Ltd involved the applicant, Forssell, seeking leave to commence proceedings for damages related to pain and suffering from a workplace accident. The dispute centred on whether Forssell suffered from permanent severe mental or permanent severe behavioural disturbance or disorder, which was a prerequisite for his eligibility to claim under the Workplace Injury Rehabilitation and Compensation Act 2013. The matter was heard in the County Court of Victoria, with an appeal subsequently taken to the Court of Appeal.

The key legal issues before the court were whether the judge made an adverse credit finding based on an erroneous factual basis and whether there was a legal requirement for Forssell to 'disentangle' the physical and psychological contributions to his mental disorder. The Court of Appeal held that there was no such legal requirement, and the adverse finding by the judge was based on an incorrect interpretation of the law. The Court found that the judge's adverse credit finding was flawed because it incorrectly required Forssell to separate the physical and psychological aspects of his condition, which was not a legal obligation.

As a result of these findings, the Court of Appeal allowed the appeal and remitted the proceeding to the County Court for rehearing by another judge. The Court emphasised that there was no legal necessity for Forssell to disentangle the physical and psychological contributions to his mental disorder and that the adverse credit finding was based on a misunderstanding of the applicable legislation. The case underscores the importance of correctly interpreting statutory provisions and ensuring that findings of fact are not based on erroneous legal principles.

The final orders of the Court of Appeal were that the appeal was allowed, the proceeding was remitted to the County Court, and it was directed that the matter be reheard by another judge, without the previous adverse credit finding. This decision ensures that Forssell's case will be reconsidered with a proper understanding of the legal requirements and factual findings.

Orders