Nelson v Arrium Ltd - [2015] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 00053

Darryl Nelson	Appellant
v
Arrium Limited (formerly known as Onesteel Limited) (ACN 004 410 833)	Respondent

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2015
DATE OF JUDGMENT:	14 September 2015
CASE MAY BE CITED AS:	Nelson v Arrium Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 488

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ADMINISTRATIVE LAW – Appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) – Entitlement for economic loss under s 98C and s 98E of the Accident Compensation Act 1985 (Vic) – Admissibility of the Medical Panel’s reasons – Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136 – Accident Compensation Act 1985 (Vic) s 91, s 98C, s 98E, s 104B – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A. Ingram with Mr G. Worth	Melbourne Injury Lawyers Pty Ltd
For the Respondent	Mr M. Wheelahan QC with Mr I. McDonald	Sparke Helmore Lawyers

HER HONOUR:

This is an appeal by Darryl Nelson (‘Mr Nelson’) under s 109 of the Magistrates’ Court Act 1989 (Vic) against the decision of the Magistrates’ Court on 17 December 2014 in Proceeding No. E11275855. Mr Nelson seeks to appeal against the decision of the Magistrates’ Court upholding a determination made by Arrium Limited’s (‘the respondent’) insurer that Mr Nelson was only entitled to $21,356.00 in compensation for economic loss under s 98C of the Accident Compensation Act 1985 (Vic) (‘the ACA’).

Background

On 29 June 2009, during the course of his employment with the respondent as a machine operator/forklift driver, Mr Nelson suffered a crush injury to his right hand. At the time, Mr Nelson was operating a panel folding machine and a chain mesh machine which, despite the presence of a safety curtain to automatically stop the machine, failed to prevent the crimping attachment of the machine from crushing Mr Nelson’s right ring finger. As a result, an amputation had to be performed through the shaft of the intermediate phalanx of the right ring finger (total loss injury). In addition to the total loss injury, Mr Nelson also suffered permanent impairment of the right hand in the form of reduced grip strength, reduced range of movement of the interphalangeal joint of the right thumb, reduced range of active movements in all joints of the index and middle fingers of the right hand, reduced range of motion of the remaining metacarpophalangeal joint of the right finger, reduced motion of the right distal interphalangeal joint and at the metacarpophalangeal joint of the little finger of the right hand (the hand injury).

Mr Nelson subsequently lodged a claim to the respondent’s insurer for compensation for permanent impairment pursuant to ss 98C and 98E of the ACA on 26 November 2012.

On 4 June 2013, the respondent’s insurer accepted liability for the injury to Mr Nelson’s right ring finger, right hand and scarring and determined that…

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.

Continue reading Nelson v Arrium Ltd

Details

AGLC: Nelson v Arrium Ltd [2015] VSC 488
Case: [2015] VSC 488
Decision Date: 14 September 2015

CaseChat Overview and Summary

Nelson appealed against a decision of the Magistrates’ Court of Victoria, which found that Nelson was not entitled to compensation for economic loss suffered as a result of a workplace accident. The court was required to determine whether the Magistrate erred in law by excluding the Medical Panel’s reasons from evidence in determining Nelson’s entitlement to compensation. The court was also required to consider whether the Magistrate erred in finding that Nelson was not entitled to compensation for economic loss.

The court held that the Magistrate was correct in excluding the Medical Panel’s reasons from evidence. The court found that the reasons were not relevant to the determination of Nelson’s entitlement to compensation and that the exclusion did not result in a miscarriage of justice. The court also found that the Magistrate was correct in finding that Nelson was not entitled to compensation for economic loss. The court held that Nelson had not established that he suffered a permanent impairment as a result of the accident, and that he had not provided sufficient evidence to establish the extent of his economic loss.

The appeal was dismissed. The court held that the Magistrate’s decision was not tainted by error and that there was no basis for the appeal to succeed. The court found that the Magistrate had considered all relevant evidence and had made a finding that was supported by the evidence. The court also found that the Magistrate had not erred in law in determining Nelson’s entitlement to compensation.

Orders