SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0194 | |
| PATRICIA BERNICE HALPIN | Appellant |
| v | |
| WILSON TRANSFORMER COMPANY PTY LTD | Respondent |
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| JUDGES | NETTLE and OSBORN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 12 September 2012 | |
| DATE OF JUDGMENT | 28 September 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 235 | |
| JUDGMENT APPEALED FROM | Halpin v Wilson Transformer Company Pty Ltd [2011] VCC 1513 (Judge Kings) | |
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ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 in respect of pain and suffering – Whether reasons inadequate – Whether judge mistook the evidence – Specific error established – Pain and suffering consequences of the appellant’s injury sufficient to constitute a serious injury – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr R P Gorton QC with Mr R N Morrow | Nevin Lenne & Gross |
| For the Respondent: | Mr M F Wheelahan SC with Mr R Kumar | Wisewould Mahony Lawyers |
NETTLE JA:
In this matter I have had the very considerable advantage of reading in draft the reasons for judgment of Osborn JA.
I agree with his Honour that, despite the detailed and carefully constructed reasons of the judge below, it is apparent that her Honour to some extent misapprehended the opinions of the appellant’s two treating surgeons and evidence as to whether the appellant retains the ability to engage in moderate activities such as swimming and playing tennis with her grandchildren.
I also agree with Osborn JA that, when one takes into account the degree of continuing pain to which the appellant has been subjected by her injury, with which she is able to deal only with the aid of daily consumption of Tramadol and Panadeine Forte as required, the pain and suffering consequences of her injury can fairly be described as being more than significant or marked and being at least very considerable.
In the result, I agree with his Honour that the appeal should be allowed and with the other orders for the disposition of the appeal which he proposes.
OSBORN JA:
The appellant is a 74 year old woman who suffered a rotator cuff injury to her right shoulder as the result of tripping and falling at work on 24 February 2009. She has continued working assembling transformers in the respondent’s factory since the accident, but has suffered ongoing pain and a number of other consequences which have affected her daily life.
In March 2011, she commenced proceedings in the County Court at Wodonga seeking leave pursuant to s 134AB of the Accident Compensation Act 1985 to commence proceedings in respect of that injury.
The application was heard on circuit and, on 30 November 2011, a County Court judge refused the appellant leave.
The appellant does not dispute that her Honour applied the correct tests in reaching the conclusion she did. Nor is it disputed that her Honour made a series of findings which were correct upon the evidence. It is submitted, however, that her Honour erred in the conclusions which flowed…
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- Case
- [2012] VSCA 235
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that the reasons provided by the trial judge were inadequate and that he had made specific errors in his interpretation of the evidence. The court held that the appellant's injury did in fact constitute a serious injury as it caused significant pain and suffering. The court found that the appellant's condition was such that it was unlikely to improve and that the consequences of the injury were significant. The Court of Appeal allowed the appeal and remitted the matter back to the trial judge for reassessment.
The Court of Appeal found that the appellant's injury did in fact constitute a serious injury as it caused significant pain and suffering. The court held that the reasons provided by the trial judge were inadequate and that he had made specific errors in his interpretation of the evidence. The court allowed the appeal and remitted the matter back to the trial judge for reassessment.
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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