ACCIDENT COMPENSATION – Appeal from unsuccessful application to commence proceedings for loss of earning capacity – Accident Compensation Act 1985, ss 134AB(19), (38)(b), (c), (e), (f), (g) – Whether appellant lost 40 per cent or more of earning capacity – Assessment of pre-injury earning capacity – Capacity for suitable employment – Accident Compensation Act 1985, s 5 – No suitable employment existing in area of residence – Appeal allowed.
EVIDENCE – Expert evidence – Evidence of suitability of employment given by medical professionals.
COSTS – Statutory direction as to costs – Accident Compensation Act 1985, s 134AB(27)(a) – Costs of application to be awarded against party against whom decision is made, subject to the ‘rules of the court’ – Leave granted to commence proceedings to recover damages for pain and suffering but not for loss of earning capacity – Judge awarded no costs after date on which Calderbank offer lapsed – Whether judge entitled to take account of Calderbank offer.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr R P Gorton QC with Ms B Y Knoester
Zaparas Lawyers
For the Respondent
Mr J Ruskin QC with Mr M F Fleming SC
Thomsons Lawyers
WARREN CJ NEAVE JA HARGRAVE AJA:
On 15 November 2005, the appellant, Mr Paul Giankos, who was employed as a forklift operator by the respondent, SPC Ardmona Operations Ltd (‘SPC’), suffered a full-thickness retracted tear of the supraspinatus tendon (a rotator cuff tendon) in his right shoulder. The injury occurred when he tried to dislodge a pallet laden with boxes of canned fruit which had stuck on the rollers of a machine which shrink‑wrapped pallets. Although the tendon was surgically repaired, it tore again on two subsequent occasions. (We refer to these later injuries below.)
On 6 October 2009, a County Court judge granted the appellant leave to commence proceedings to recover common law damages for pain and suffering. Her Honour held that appellant’s tendon tear amounted to a permanent serious impairment or loss of a bodily function,[1] which had serious pain and suffering consequences under s 134AB(38)(a) and (c) of the Accident Compensation Act 1985 (the ‘Act’), because the ‘impairment to the [appellant’s] right shoulder, when judged against other cases in the range of possible impairments, [could] be fairly described as “at [least] very considerable” and “more than significant” or “marked”‘.[2]
The judge dismissed the appellant’s application for leave to commence proceedings to recover damages for loss of…
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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AGLC
Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Case
[2011] VSCA 121
Decision Date
CaseChat Overview and Summary
The plaintiff, Giankos, appealed a decision that denied leave to commence proceedings against the defendant, SPC Ardmona Operations Ltd, for compensation of loss of earning capacity. The plaintiff sought to recover damages for both pain and suffering and loss of earning capacity following an injury sustained in an accident. The application was dismissed, but leave was granted to commence proceedings for damages for pain and suffering. The plaintiff appealed the denial of leave to commence proceedings for loss of earning capacity. The court had to decide whether the plaintiff lost 40 per cent or more of his earning capacity, assess the plaintiff's pre-injury earning capacity, and determine the availability of suitable employment in the plaintiff's area of residence. The court had to consider the evidence provided by medical professionals regarding the plaintiff's capacity for suitable employment and the provisions of the Accident Compensation Act 1985.
The court found that the plaintiff did not lose 40 per cent or more of his earning capacity. The court assessed the plaintiff's pre-injury earning capacity and determined that suitable employment was not available in the plaintiff's area of residence. The court considered the evidence provided by medical professionals and concluded that the plaintiff's capacity for suitable employment was not sufficient to meet the requirements of the Accident Compensation Act 1985. The court also considered the Calderbank offer and found that the judge was entitled to take it into account when awarding costs. The court allowed the appeal and remitted the matter to the lower court for further consideration.
The court directed that the costs of the application be awarded against the party against whom the decision was made, subject to the rules of the court. The court granted leave to the plaintiff to commence proceedings to recover damages for pain and suffering but not for loss of earning capacity. The court also directed that the judge was entitled to take into account the Calderbank offer when awarding costs. The court's decision was based on the evidence provided and the provisions of the Accident Compensation Act 1985. The court found that the plaintiff did not meet the requirements for compensation of loss of earning capacity and that the judge was entitled to take into account the Calderbank offer when awarding costs.