Halpin v Wilson Transformer Company Pty Ltd - [2012] VSCA 235

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…

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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Details

Case: [2012] VSCA 235
Decision Date: 28 September 2012

CaseChat Overview and Summary

Halpin brought a claim against Wilson Transformer Company for compensation in relation to an injury suffered in the course of employment. The matter proceeded to the Supreme Court of Victoria where the judge found that the appellant had not suffered a serious injury within the meaning of the Accident Compensation Act 1985. The appellant appealed the decision to the Court of Appeal, arguing that the judge had erred in his assessment of the evidence, and that the consequences of the injury were sufficient to constitute a serious injury. The court was required to determine whether the reasons provided by the trial judge were adequate and whether the judge had correctly interpreted the evidence. The court also had to decide whether the appellant's injury constituted a serious injury under the Act.

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