M & J Rawlings Builders And Contractors v Rawlings

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MORRIS & JOAN RAWLINGS BUILDERS AND CONTRACTORS	S APCI 2009 3728
	Appellants
V
DAVID MORRIS RAWLINGS	Respondent

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JUDGES	WARREN CJ, BUCHANAN, NETTLE, MANDIE JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2010
DATE OF JUDGMENT	18 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 306
JUDGMENT APPEALED FROM	David Rawlings v Morris James Rawlings and Joan Marianne Rawlings trading as M & J Rawlings Builders and Contractors (Unreported, County Court of Victoria, Judge Hogan, 3 March 2009)

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ACCIDENT COMPENSATION – Workers compensation – Leave to bring common law proceedings – Serious injury – Severe mental or permanent severe behavioural disturbance or disorder – Cause of action arising before 12 November 1997 – Leave application not to be commenced unless application for determination made before expiration of three years after date incapacity ‘became known’ – Onus of proof on worker – Sufficient to prove absence of subjective knowledge of facts which, viewed objectively, would constitute serious injury – Relevance of mental healthcare specialists’ failure to diagnose condition – Onus discharged – Paget v JLT Workers Compensation Services Pty Ltd (2005) 12 VR 692, followed; R v NcNeil (1922) 31 CLR 76, distinguished; Herschberg & Anor v Mula (1993) Aust Torts Reports 62,664, disapproved; Commonwealth of Australia v Smith [2005] NSWCA 478, considered – Accident Compensation Act 1985, ss 135A(4)(b), 135AC(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Ruskin  QC with Mr S A O’Meara	Herbert Geer
For the Respondent	Mr A D B Ingram with Ms F A L Ryan	Melbourne Injury Lawyers Pty Ltd

WARREN CJ, BUCHANAN JA, NETTLE JA, MANDIE JA, BEACH AJA:

1. Mr David Rawlings, the respondent, suffered a psychiatric injury which he claims was caused by his employment with Morris James Rawlings and Joan Marianne Rawlings (trading as M & J Rawlings Builders and Contractors), between 1 January 1994 and April 1994.

1. By originating motion, the respondent sought leave, pursuant to s 135A(4)(b) of the Accident Compensation Act1985 (‘the Act’), to bring proceedings at common law against the appellants. In order to succeed in that application, the respondent had to establish that he had sustained a ‘serious injury’ within the meaning of s 135A(19) of the Act. The relevant part of the definition of ‘serious injury’ so far as the respondent was concerned was contained in paragraph (c) of the definition of ‘serious injury’ – namely, ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.

1. The application was heard by Judge Hogan on 27 – 29 January 2009. During the hearing of the application, the appellants contended that the respondent’s psychiatric condition did not satisfy the description ‘severe long-term mental or severe long-term behavioural disturbance or disorder’. Further, they contended that in any event, the application for leave was barred by the operation of s 135AC of the Act.

1. On 3 March 2009, her Honour delivered judgment granting the respondent the leave he sought. In doing so,…