Jovanoska v Betta Foods Pty Ltd - [2009] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3721 of 2008

VASILKA JOVANOVSKA
VASILKA JOVANOVSKA	Appellant/Plaintiff
v
BETTA FOODS PTY LTD	First Respondent/First Defendant
and
and	VICTORIAN WORKCOVER AUTHORITY	Second Respondent/Second Defendant

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JUDGES:	DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2009
DATE OF JUDGMENT:	18 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 98

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ACCIDENT COMPENSATION – Application under s 134AB(16)(b) Accident Compensation Act 1985 – Injury to right shoulder and elbow – Alleged ‘serious injury’ by impairment to right arm – Reliability of opinions affected by inaccurate histories – Force of admissions affected by inaccurate information in compensation claim forms – Application refused in County Court – Appeal under s 134AC Accident Compensation Act 1985 – Court not satisfied that appellant suffered ‘serious injury’ arising on or after 20 October 1999 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J R Moore QC Ms M Taaffe	John Dellios & Associates
For the Respondents	Mr J Ruskin QC Mr J P Gorton	Wisewoulds

DODDS-STREETON JA:

I have had the advantage of reading in draft the reasons for judgment of Williams AJA. I agree with the disposition proposed by her Honour for the reasons she gives.

WEINBERG JA:

I agree, for the reasons given by Williams AJA, that this appeal should be dismissed.

WILLIAMS AJA:

The appeal

This is an appeal from the refusal by a County Court judge of an application by the appellant (‘Ms Jovanovska’) under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’).

Ms Jovanovska had applied for leave to commence proceedings against the first respondent (‘Betta Foods’) for damages for pain and suffering in respect of an impairment to her right arm. She claimed that her right arm injury arose in the course of her employment with Betta Foods on or after 20 October 1999 and was, at the time of the County Court application, a ‘serious injury’ under s 134AB(37) of the Act.

On 17 February 2003 when Ms Jovanovska stopped working for Betta Foods, s 134AB(2) of the Act, provided:

(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999.

The insurer had accepted claims for compensation made by Ms Jovanovska in relation to injury to her neck, elbows and shoulders. A medical panel had assessed her resulting level of impairment under s 104B of the Act at 12% on 10 January 2006.

Section 134AB(16)(b) provided that leave was required to commence proceedings in those circumstances:

(16)If the assessment under s 104B … of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless- …

(b) a court…

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: [2009] VSCA 98
Decision Date: 18 May 2009

CaseChat Overview and Summary

In the matter of Jovanoska v Betta Foods Pty Ltd, the County Court was tasked with determining the validity of a claim for compensation under the Accident Compensation Act 1985. The appellant, Jovanoska, sought compensation for injuries sustained to her right shoulder and elbow, which she claimed constituted a ‘serious injury’ as defined by the Act. The respondent, Betta Foods Pty Ltd, opposed the claim, arguing that the injuries were not serious enough to warrant compensation. The case was initially decided in the County Court, which refused the application. Jovanoska appealed this decision to the Court of Appeal.

The central legal issue before the Court of Appeal was whether Jovanoska had indeed suffered a ‘serious injury’ within the meaning of the Act, arising on or after 20 October 1999. The Court was required to examine the medical evidence and opinions presented, as well as the reliability of these opinions given the inaccuracies in the histories provided. Additionally, the Court had to consider how the admissions in the compensation claim forms were influenced by the inaccurate information and whether this impacted the assessment of the injury's seriousness. The Court also needed to determine if the evidence sufficiently supported a finding of a serious injury.

The Court of Appeal held that it was not satisfied that Jovanoska had suffered a ‘serious injury’ as defined by the Act. The reliability of the medical opinions was compromised by the inaccurate histories provided, and the admissions in the compensation claim forms were influenced by this inaccurate information. Consequently, the Court found that the evidence did not support a finding that Jovanoska had suffered a serious injury. The appeal was therefore dismissed, affirming the County Court's decision to refuse the application for compensation.

Orders