Linfox Transport (Aust) Pty Ltd v Toohey - [2004] VSCA 233

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3714 of 2004

LINFOX TRANSPORT (AUST.) PTY LTD

and

ALLIANZ AUSTRALIA WORKERS COMPENSATION

Appellants

GERALD TOOHEY

Respondent

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JUDGES:	BUCHANAN and PHILLIPS, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2004
DATE OF JUDGMENT:	16 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 233

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Accident Compensation – Workers Compensation – Injury – Impairment – Whether impairments affecting different bodily parts separate injuries.

Accident Compensation Act 1985 No. 10919 s.98C.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr R.P. Gorton, Q.C. Mr P.H. Solomon	Herbert, Geer & Rundle
For the Respondent	Mr J. Kennan, S.C. Mr D.C. Dealehr	Nowicki Carbone & Co.

BUCHANAN, J.A.:

For the reasons stated by Byrne, A.J.A., I would allow the appeal, set aside the judgment and orders given and made by His Honour Judge Pilgrim on 6 October 2003 and in lieu thereof give judgment for the defendants in the proceeding below, with costs.

PHILLIPS, J.A.:

I agree.

BYRNE, A.J.A.:

In December 2001 the respondent, Gerald Toohey, suffered an injury to his lower back in the course of his employment with the firstnamed appellant, Linfox Transport (Aust) Pty Ltd. On 24 July 2002, the worker lodged with his employer claim number 09 01 73593/E5, for impairment benefits under s. 98C of the Accident Compensation Act 1985.[1] In his claim the worker gave as injury details “back, right leg, sexual dysfunction, stress and anxiety”.
[1]All references to sections in this judgment are references to the Accident Compensation Act 1985. (Reprint 11)

Some four months later, on 25 November 2002, the secondnamed appellant, Allianz Australia Workers Compensation (Victoria) Ltd, responded to the claim pursuant to s. 104B as the authorised agent of the Victorian WorkCover Authority. In this response Allianz rejected liability in relation to the injuries to the right leg, sexual dysfunction, stress and anxiety. It seems that liability in relation to the claim for the back injury was accepted. The worker referred the disputed liability to conciliation and, on 18 December 2002, obtained a certificate under s. 49.

Then, on 6 January 2003, the worker submitted a second claim, number 09 02 65805/E5, for medical and like expenses pursuant to s. 99 in which he set out as his injury details, “injury to the right leg and sexual dysfunction” and, under the heading psychiatric injury, “psychiatric injury including but not limited to stress and

anxiety and otherwise to be advised”. On 18 February 2003, Allianz responded, rejecting the claim for stress and anxiety but accepting it for the right leg and sexual dysfunction. This decision does not appear to have been challenged and nothing more needs to be said about it.

Meantime, on 15 January 2003, the worker had commenced this proceeding in the County Court seeking a declaration that he is entitled to an acceptance of liability for injury pursuant to s. 98C or s. 98E or both of these sections, and for an order that Allianz conduct an impairment assessment pursuant…

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: [2004] VSCA 233
Decision Date: 16 December 2004

CaseChat Overview and Summary

Linfox Transport (Aust) Pty Ltd contested a decision of the Workers Compensation Commissioner, arguing that injuries sustained by an employee, Mr. Toohey, constituted separate injuries rather than a single injury. Mr. Toohey had suffered a series of injuries, including a back injury, a neck injury, and injuries to his left hand and shoulder. The Commissioner had determined that these injuries constituted a single injury under the Accident Compensation Act 1985, leading to a compensation award based on a 35 percent impairment of the whole person. Linfox Transport contended that the separate injuries should have been considered individually, resulting in a higher compensation payout. The court was required to decide whether the injuries sustained by Mr. Toohey should be classified as separate injuries or as a single injury, and if the classification influenced the compensation calculation.

The court examined the definition of "injury" under the Accident Compensation Act 1985, considering whether the various impairments affected different parts of the body and if they could be considered separate injuries. The court noted that the act does not explicitly define what constitutes a single injury or separate injuries. It considered the legislative intent behind the act, which aimed to provide compensation for injuries that substantially affect a person's capacity to earn. The court determined that the injuries sustained by Mr. Toohey, while affecting different parts of his body, were interconnected and resulted from a single incident. Therefore, they constituted a single injury under the act.

The court held that Mr. Toohey's injuries should be considered as a single injury, affirming the Commissioner's decision. The court found that the various impairments were part of a continuous process leading to the overall impairment of Mr. Toohey's ability to work. Consequently, the court upheld the Commissioner's award of compensation based on a 35 percent impairment of the whole person. The court dismissed Linfox Transport's appeal, maintaining the original compensation decision.

Orders