Barry McKinnon v Haden Engineering Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Ross, 14 March 2008)
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ACCIDENT COMPENSATION – Workers compensation – Application by injured worker for leave to bring common law proceeding – Whether ‘serious injury’ – Whether ‘pain and suffering consequence’ fairly described as ‘more than significant or marked and … at least very considerable’ – Court of Appeal to ‘decide for itself’ – Consideration of worker’s experience of pain and disabling effect of pain – Application granted – Appeal dismissed – Accident Compensation Act 1985 (Vic) s 134AB(16)(b), s 134AB(38)(b) and (c), s 134AD.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J Parrish SC with Mr J Gorton
Thomson Playford Cutlers
For the Respondent
Mr A Keogh with Mr G Pierorazio
Holding Redlich
MAXWELL P:
For some years now, civil litigation in the County Court – and civil appeals to this Court – have been dominated by disputes over ‘serious injury’. This is hardly surprising since, under the Accident Compensation Act 1985 (Vic), an affirmative finding of serious injury opens the gate to common law proceedings for damages attributable to the injury.
In this case, the judge decided that the injury sustained by Mr McKinnon was a ‘serious injury’. This Court must now ‘decide for itself’ whether it is indeed a serious injury.[1] The serious injury application was founded on what the Act calls ‘the pain and suffering consequence’ of the injury. Accordingly, the judge had to decide whether the impact of Mr McKinnon’s pain and suffering on his life was –
when judged by comparison with other cases in the range of possible impairments or losses of a body function … , fairly described as being more than significant or marked and as being at least very considerable.[2]
That task now falls to this Court.
[1]Accident Compensation Act 1985 (Vic) s 134AD. (This section has now been repealed, with effect from 10 December 2009, by the Accident Compensation Act Amendment Act 2010 (Vic).)
As has often been said, the serious injury test is couched in the language of impression.[3] ‘Elements of fact, degree and value judgment are involved.’[4] As I have suggested previously, it may be thought unfortunate that what is obviously a very significant opportunity – that is, to sue at common law – should have been made to depend on such imprecise, impressionistic, adjectival criteria.[5] Of course, whether the statutory test is to be regarded as a satisfactory way of differentiating between those who can sue and those who cannot is a matter for Parliament.
[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
Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Case
[2010] VSCA 69
Decision Date
CaseChat Overview and Summary
Haden Engineering Pty Ltd, an employer, was involved in a legal dispute with McKinnon, an injured worker. The case was heard in the Court of Appeal of Victoria, where McKinnon sought leave to bring a common law proceeding against the employer for damages arising from a work-related injury. The primary issue before the court was whether McKinnon’s injury qualified as a "serious injury" under the Accident Compensation Act 1985 (Vic), which would entitle him to pursue common law damages. A further consideration was whether the pain and suffering resulting from the injury was sufficiently severe to meet the statutory criteria.
The court examined the statutory definition of "serious injury" and assessed whether McKinnon’s pain and suffering met the threshold of being "more than significant or marked and... at least very considerable." The court noted that it was to decide for itself and not be bound by the tribunal’s findings. It considered evidence of McKinnon’s experience of pain, the disabling effects of his condition, and expert medical opinions. The court concluded that the injury did indeed meet the statutory criteria for a "serious injury," and granted McKinnon leave to bring a common law proceeding against his employer. The appeal by the employer was dismissed.
The final orders of the court were that McKinnon was granted leave to bring a common law proceeding against Haden Engineering Pty Ltd for damages arising from his work-related injury. The employer’s appeal was dismissed, and McKinnon was permitted to proceed with his claim under common law.