Mogan Holdings Pty Ltd v Harrison

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3883

MOGAN HOLDINGS PTY LTD

- and -

VICTORIAN WORKCOVER AUTHORITY

1^st Appellant

2^nd Appellant

v

TRACEY HARRISON

Respondent

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JUDGES:

MAXWELL P, MANDIE AND HARPER JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

14 April 2011

DATE OF JUDGMENT:

1 July 2011

MEDIUM NEUTRAL CITATION:

JUDGMENT APPEALED FROM:

[2011] VSCA 202

Harrison v Mogan Holdings Pty Ltd & anor  (Unreported, County Court, Judge Hogan, 23 October 2009)

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PROCEDURE - Apprehended bias - Appeal from grant of leave to plaintiff, in serious injury application, to bring common law proceedings - View expressed by trial judge that proposed medical witness for the plaintiff might need to get legal advice concerning the contents of his report and that the contents of his report might raise questions in relation to his professional conduct - Unilateral ruling by trial judge that plaintiff's counsel be permitted to cross-examine his own witness - Whether a fair-minded lay observer would reasonably apprehend, having regard to the judge's conduct in relation to the said witness, that the judge might not bring an impartial mind to the determination of the case - Judge refused to disqualify herself on the application of the defendants - Judgment set aside - New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr B Walker SC with Mr J P Gorton	Wisewould Mahony
For the Respondent	Mr A J Keogh SC with Mr J J Fitzpatrick	Ryan Carlisle Thomas

MAXWELL P:

1. I agree with Mandie JA.

MANDIE JA:

1. This is an appeal by Mogan Holdings Pty Ltd (‘the employer’) and the Victorian WorkCover Authority (jointly ‘the appellants’) from a decision of a judge in the County Court made on 23 October 2009 whereby the plaintiff (the respondent, Ms Harrison) was given leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) to bring common law proceedings for pain and suffering damages.

Factual background and proceeding below[1]

[1]The following summary is mainly derived from the agreed summary filed by the parties.

1. The respondent, who was born on 22 September 1971, commenced employment with the employer on 24 November 2003.  The respondent is right-hand dominant.  The employer dealt in a variety of paint products.  The respondent’s duties mainly comprised the delivery of drums and tins of paint of various sizes to customers of the employer.  She delivered the tins in a Ford utility vehicle.  On 24 June 2004 the respondent sprained her right wrist when assisting in the unloading of drums of paint.  On 15 July 2004 the respondent suffered further injury to her right wrist when handling drums of paint in the rear of the utility vehicle.

1. The respondent claimed that she suffered an injury to her right hand on 25 January 2005 when she fell from a paint drum upon which she was standing and her right hand struck metal shelves and she fell onto a concrete floor, possibly also striking her right hand on the…