Jarvie v Sideliner Contracting Pty Ltd - [2024] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0129

GRAEME JARVIE	Applicant
v
SIDELINER CONTRACTING PTY LTD	Respondent

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JUDGES:	BEACH, MACAULAY and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 144
JUDGMENT APPEALED FROM:	[2023] VCC 1853 (Judge Ginnane)

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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Lumbar spine injury resulting from performance of heavy work – Application by worker to commence common law proceeding for damages in respect of serious injury – Whether injury serious within meaning of s 325(1) of Workplace Injury Rehabilitation and Compensation Act 2013 – Application refused by primary judge – Judge erred in refusing application – Appeal allowed.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 325 and 335.

Barwon Spinners Pty v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hayden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Kamel [2011] VSCA 110; Philippiadis v Transport Accident Commission [2016] VSCA 1; Sheridan v Victorian Workcover Authority [2019] VSCA 54, applied.

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Counsel
Applicant:		Ms FAL Ryan SC with Ms K Popova
Respondent:		Ms RL Kaye KC with Mr R Kumar
Solicitors
Applicant:	Maurice Blackburn
Respondent:	Hall & Wilcox

BEACH JA
MACAULAY JA
LYONS JA:

Between March 2002 and November 2016, the applicant was employed by the respondent as a lining installer. His employment required him to clean domestic sewerage pipes and install a membrane or sleeve as lining inside those pipes. Aspects of the work were heavy and strenuous. Specifically, the applicant’s employment required him to move heavy equipment; to operate machinery which required force and placed strain on his body; and to perform some of these duties in a bent over position.
On about 30 August 2011, the applicant felt pain in his back while operating a machine in the course of his employment. He attended a general practitioner, Dr Atef Abdelmalak.[1] He had a little time off work, and submitted a WorkCover claim which was accepted by the respondent. The applicant had further episodes of back pain at work, until the business of the respondent ultimately shut down in 2016.
[1]At the Silverton Medical Clinic.
By an originating motion filed in the County Court on 27 April 2022, the applicant sought leave, pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’), to commence a proceeding at common law claiming damages in respect of the injuries he sustained in the course of his employment with the respondent.
The application was heard in the County Court by his Honour Judge Ginnane on 4 October 2023. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act — namely, ‘permanent serious impairment or loss of a body function’. The body function relied upon was the function of the lumbar spine. At trial,…

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: [2024] VSCA 144
Decision Date: 27 June 2024

CaseChat Overview and Summary

In the case of Jarvie v Sideliner Contracting Pty Ltd, the applicant, Mr Jarvie, sought to initiate a common law proceeding against his employer, Sideliner Contracting Pty Ltd, for damages arising from a serious injury sustained at work. The dispute came before the court, which was tasked with determining whether the injury met the criteria for being considered "serious" under section 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. The primary judge had dismissed the application, prompting Mr Jarvie to appeal the decision.

The court had to ascertain whether the injury was indeed serious enough to warrant the commencement of a common law action. This involved examining the nature and extent of the injury, and assessing if it met the statutory definition of "serious injury" as outlined in the Act. The court also had to consider the relevant case law, such as Barwon Spinners Pty v Podolak, Dwyer v Calco Timbers Pty Ltd (No 2), Hayden Engineering Pty Ltd v McKinnon, Transport Accident Commission v Kamel, Philippiadis v Transport Accident Commission, and Sheridan v Victorian Workcover Authority, to provide a comprehensive understanding of the legal framework surrounding the issue.

The court found that the primary judge had erred in dismissing Mr Jarvie's application. The injury sustained by Mr Jarvie was indeed serious, satisfying the criteria under section 325(1) of the Act. The court held that the injury warranted the applicant to have the opportunity to pursue common law damages. Consequently, the appeal was allowed, and the matter was remitted back to the primary judge for further consideration in light of the court's findings.

The final orders of the court were to allow the appeal, set aside the decision of the primary judge, and remit the matter back to the primary judge for reconsideration in accordance with the court's reasons.

Orders