Mitchell v Ashton Pty Ltd & Anor

[2011] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3908
MARK MITCHELL	Appellant
v
ASHTON PTY LTD (Trading as Swan Hill Abattoirs) & Anor	Respondents

---

JUDGES	ASHLEY and TATE JJA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 February 2011
DATE OF JUDGMENT	3 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 47
JUDGMENT APPEALED FROM	Mitchell v Ashton Pty Ltd (Unreported, County Court of Victoria, Judge Robertson, 7 December 2009)

---

Accident Compensation – Serious injury application – Dismissed by County Court Judge – Injury essentially soft tissue and resolved – Current consequences not serious – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr C W R Harrison SC and Mr R W Dyer	Nowicki Carbone
For the Respondents	Mr M F Wheelahan SC and Mr S A O’Meara	Hall & Wilcox

ASHLEY JA:

1. I have read in draft the reasons for judgment of Hargrave AJA and I respectfully agree with them.

TATE JA:

1. I agree with Hargrave AJA.

HARGRAVE AJA:

Introduction

1. On 11 December 2006, the appellant, Mark Mitchell, was employed by the respondent, Ashton Pty Ltd (trading as Swan Hill Abattoir) as a carcass assessor and labourer.  On that day, a cow carcass fell on his back and knocked him to the ground (the ‘workplace accident’).  As a result of this workplace accident, Mr Mitchell suffered an injury to his thoracic spine (the ‘workplace injury’). 

1. Mr Mitchell applied to the County Court for leave to bring a common law proceeding against the respondent, for the recovery of pain and suffering damages only, in respect of his workplace injury. The application was made pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’). In order to succeed in his application, Mr Mitchell was required to satisfy the County Court, on the balance of probabilities, that his workplace injury was a ‘serious injury’ as defined in s 134AB(37) of the Act. In that regard, he relied upon paragraph (a) of the definition of ‘serious injury’, contending that his injury was a ‘permanent serious impairment or loss of a body function’. Further, by s 134AB(38)(c), Mr Mitchell was required to satisfy the County Court that his impairment or loss of body function is, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked, and is properly to be described as ‘at least very considerable’.

1. The trial judge dismissed the application, principally because he found that Mr Mitchell’s workplace injury was:  (1) ‘essentially in the nature of a soft tissue injury’ and (2) that ‘such injury effectively resolved over a short period of time.’[1] 

   [1]Reasons, [43(3)]. 

Nature of the appeal

1. The first issue for determination on appeal is whether the trial judge erred in making these principal findings. The appeal was conducted on the agreed basis that the appeal against both of these findings is governed by s 74(3) of the County Court Act 1958,[2] attracting the usual principles for appellate…