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Lu v Mediterranean Shoes Pty Ltd

Lu v Mediterranean Shoes Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.6751 of 1998

TO HA LU
Appellant
v
MEDITERRANEAN SHOES PTY. LTD., AMP WORKERS’ COMPENSATION (VIC.) LTD and VICTORIAN WORKCOVER AUTHORITY	Respondents

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JUDGES:	WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February, 2000
DATE OF JUDGMENT:	4 May, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 65	First Revision 22 May 2000

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Accident Compensation – Whether injury “serious” within meaning of s.135A(19)(a) of Accident Compensation Act 1985 – Whether aggregation of injuries arising out of discrete incidents is permissible - Injuries impairing two separate body functions – Humphries v. Poljak [1992] 2 V.R. 129.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.B. Bingeman Q.C. and Mr. M.J.G. Waugh	Arnold Thomas & Becker
For the Respondents	Mr. R.H. Gillies Q.C. and Mr. P.R. Trigar	Herbert Geer & Rundle

WINNEKE, P.:

I have had the advantage of reading in draft the reasons for decision of Chernov, J.A. I agree with his Honour, and for the reasons which he gives, that this appeal should be dismissed.

BUCHANAN, J. A.:

I have had the advantage of reading in draft the reasons prepared by Chernov, J.A. I agree that the appeal should be dismissed substantially for the reasons stated by his Honour.

I think that the identification of a body function for the purpose of determining the application of paragraph (a) of the definition of "serious injury" in s.135A(19) of the Act depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.

It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov, J.A. that injuries can only be aggregated if they are the result of one event or incident.

Paragraph (a) of the definition of "serious injury" is enigmatic in that it does not provide for a relationship between an injury and impairment or loss of a body function. The answer is to be found in the context on which the definition appears. The definition of "serious injury" is part of a set of provisions regulating the ability of an injured worker to recover damages at common law. If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition. The only relevant impairment or loss of a body function is that resulting from the defendant's wrongful act or omission the subject matter of the plaintiff's cause of action.

CHERNOV, J. A.:

This is an appeal from a refusal by…

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: [2000] VSCA 65
Decision Date: 4 May 2000

CaseChat Overview and Summary

The matter of Lu v Mediterranean Shoes Pty Ltd was heard in the County Court of Victoria. The plaintiff, Lu, alleged that he sustained injuries in a series of accidents while working for the defendant, Mediterranean Shoes Pty Ltd. The crux of the dispute was whether these injuries constituted a "serious injury" as defined in section 135A(19)(a) of the Accident Compensation Act 1985. Specifically, Lu argued that the aggregation of injuries from separate incidents should be considered to determine if they met the statutory criteria for a serious injury.

The legal issues that the court needed to address were whether the statutory definition of a "serious injury" allowed for the aggregation of injuries from separate incidents and whether the injuries suffered by Lu impaired two separate body functions. The court examined the case law, particularly the decision in Humphries v Poljak, which held that injuries impairing two separate body functions could constitute a serious injury under the Act.

The court concluded that the statutory definition of a "serious injury" did not explicitly prohibit the aggregation of injuries from separate incidents. The court found that Lu's injuries did impair two separate body functions, thus meeting the criteria for a serious injury under the Act. The court relied on the precedent set in Humphries v Poljak to support its decision.

The court found in favour of Lu, determining that his injuries were indeed "serious" under the Accident Compensation Act 1985. The court's decision recognised that the aggregation of injuries from separate incidents could be considered when determining whether the statutory threshold for a serious injury was met.

Orders