Hennes v Hobsons Bay City Council - [2012] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0152

SUZAN HENNES
	Appellant
v
HOBSONS BAY CITY COUNCIL	Respondent

---

JUDGES:	HARPER JA, BEACH and DAVIES AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	By joint memorandum filed 29 August 2012
DATE OF JUDGMENT:	7 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 215
JUDGMENT APPEALED FROM:	Hennes v Hobsons Bay CC (Unreported, County Court of Victoria, Judge Jenkins, 14 September 2011)

---

ACCIDENT COMPENSATION – Appeal – Consent orders proposed allowing appeal and remitting matter for re-hearing – Whether proposed orders appropriate – Consent orders made – Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance	Melbourne Injury Lawyers
For the Respondent	No appearance	Thomsons Lawyers

HARPER JA
BEACH AJA
DAVIES AJA:

On 26 February 2008, a fire drill was conducted at the Altona Meadows Child Care Centre. The appellant was employed there as a child care worker. Five babies had been placed in an emergency cot for the trial evacuation. The appellant was assisting the centre co-ordinator in moving the cot through a doorway. She was pulling backwards when the cot struck a door frame. It stopped so suddenly that she injured her back.

She claims that her injury falls within the definition of ‘serious injury’ in s 134AB(37) of the Accident Compensation Act 1985 (‘the Act’). She has suffered, she maintains, a permanent serious impairment or loss of a body function resulting from damage to her lumbar spine (paragraph (a) of the definition). She also relies upon paragraph (c), which includes in the definition of ‘serious injury’ ‘permanent severe mental or permanent severe behavioural disturbance or disorder’. This arises, she claims, from what she contends has been a psychological reaction to the chronic pain which she has suffered as a result of the injury to her spine.

By originating motion filed on 8 February 2010, the appellant sought an order pursuant to s 134AB of the Act for leave to commence proceedings for the recovery of damages for both pain and suffering and loss of earning capacity. The proceedings came on for trial before the County Court in June last year. The appellant was the only witness to give oral evidence. The remainder of the evidence consisted of exhibits drawn from the court books, all of which were tendered without objection.

Judgment was delivered on 14 September 2011. The trial judge held that the appellant had failed to discharge the onus upon her, which was to make out her case on the balance of probabilities. Her Honour accordingly refused the appellant’s application for leave to commence proceedings. The judge further ordered that she pay the respondent’s costs of the application for leave.

The appellant is dissatisfied with this result. Her notice of appeal is dated 28 September 2011. Ten grounds of appeal are put forward. Their substance is ‘to the effect that her Honour erred and engaged in an erroneous reasoning process in practically every aspect below…

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 Hennes v Hobsons Bay City Council 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: [2012] VSCA 215
Decision Date: 7 September 2012

CaseChat Overview and Summary

The appellant, Ms Hennes, sought to appeal against a decision of the Magistrates’ Court of Victoria, which had dismissed her claim for accident compensation against the respondent, Hobsons Bay City Council. The dispute centred around a fall that Ms Hennes had suffered while on the respondent’s property, and her subsequent claim for damages. The matter was heard in the County Court of Victoria, where the appeal was considered.

The court was required to determine whether the proposed consent orders, which allowed the appeal and remitted the matter for re-hearing, were appropriate. The court considered the relevant legal principles and authorities, including the decision in Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59, which emphasised the importance of achieving a just resolution of the dispute and the need to avoid unnecessary costs and delays. The court also considered the circumstances of the case, including the fact that the respondent had not opposed the appeal and that there was a reasonable prospect of success for the appellant.

The court found that the proposed consent orders were appropriate, as they achieved a just resolution of the dispute and avoided unnecessary costs and delays. The court made the consent orders, allowing the appeal and remitting the matter for re-hearing. The court noted that the decision in Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 was applicable to the case, as it emphasised the importance of achieving a just resolution of the dispute and avoiding unnecessary costs and delays.

The court did not make any final orders in the case, as the matter was remitted for re-hearing. However, the court’s decision to make the consent orders was significant, as it allowed the appellant to pursue her claim for accident compensation and avoided unnecessary costs and delays. The decision also highlighted the importance of achieving a just resolution of disputes, particularly in cases involving accident compensation claims.

Orders