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Papercorp Pty Ltd v Nicolaou

Papercorp Pty Ltd v Nicolaou

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Case Copied 7 July 2006 44 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

PAPERCORP PTY LTD (ACN 009 391 539)	No. 3791 of 2005
PAPERCORP PTY LTD (ACN 009 391 539)	Appellant
and
STEFANOS NICOLAOU	Respondent
No. 3792 of 2005
LENARD HOWDEN	Appellant
and
ANSETT AUSTRALIA	Respondent

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JUDGES:	MAXWELL, A.C.J., NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 April 2006
DATE OF JUDGMENT:	7 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 143

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Accident compensation – s.135AC(b), Accident Compensation Act 1985 – Whether application under s.135A(2B) made “before the expiration of three years after the date the incapacity became known” – Whether sufficient for a worker to know, outside the three-year period, that compensable injury has brought about long-term serious consequences of the pain and suffering kind – Relevance, if any, of development of serious economic consequences within the three year period – What is meant by the statement that “serious injury” means injury which in its consequences is serious for the particular worker.

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APPEARANCES:	Counsel	Solicitors
For the Appellant (Papercorp Pty Ltd)	Mr J.H.L. Forrest, Q.C. with Mr S.A. O’Meara	Wisewoulds
For the Appellant (Howden)	Mr D.F.R. Beach, S.C. with Mr P.A. Jewell	Holding Redlich
For the Respondent (Nicolaou)	Mr P.A. Scanlon, Q.C. with Mr A.D.B. Ingram	Antony Sdrinis & Co.
For the Respondent (Ansett Australia)	Mr J.H.L. Forrest, Q.C. with Mr S.A. O’Meara	Herbert Geer & Rundle

MAXWELL, A.C.J.:

I have had the considerable advantage of reading in draft the reasons for judgment of Ashley JA. I agree with the disposition of these appeals which his Honour proposes, for the reasons which his Honour gives.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A. and I agree with the disposition of the appeals which his Honour proposes.

As Handley, J.A. said in another context in Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd,[1] the problem of defining the boundary between belief and knowledge for legal purposes did not arise for the first time in this case. It has been considered in a number of legal contexts and, generally speaking, it has been defined as including facts, apart from religious beliefs, that we believe to be true. In some contexts – perhaps most – it may also include matters that we wilfully abstain from knowing or against which we wilfully shut our eyes. And, as Ashley, J.A. observes, in others it may include matters of which a mentally disabled victim is incapable of comprehension but which to those around him are evident.
[1](2001) 50 N.S.W.L.R. 679 at 688[45].

It is unnecessary for the present, and therefore it would be undesirable, for one to attempt a comprehensive definition of what is “known” for the purposes of the s.135AC(b) of the Accident Compensation Act 1985. But I should not wish to let the occasion pass without adding to the observations of Ashley, J.A. that I too consider that “Nelsonian knowledge”[2] and facts from which knowledge is objectively capable of ascertainment must, at least in some circumstances,…

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: [2006] VSCA 143
Decision Date: 7 July 2006

CaseChat Overview and Summary

Papercorp Pty Ltd filed an action against Nicolaou in the Supreme Court of New South Wales. Nicolaou had suffered a compensable injury in 2005 and claimed ongoing pain and suffering. Papercorp challenged the validity of the claim, arguing that Nicolaou had not applied for compensation within the three-year period stipulated by section 135A(2B) of the Accident Compensation Act 1985. The central issue before the court was whether Nicolaou's knowledge of the long-term serious consequences of his injury, occurring outside the three-year period, was sufficient to meet the Act's requirements, particularly in light of the development of serious economic consequences within that period.

The court examined the meaning of "serious injury" under section 135AC(b) of the Act. It considered the significance of the three-year period for applications under section 135A(2B) and whether this period could be extended by a worker's delayed recognition of the long-term serious consequences of their injury. The court also assessed whether the emergence of serious economic consequences within the three-year period could affect the timing of the application, or if the focus should remain on the worker's awareness of the pain and suffering consequences. The court's interpretation hinged on understanding how "serious injury" should be applied to the specific circumstances of the individual worker.

Ultimately, the court ruled that for an application to be valid under section 135A(2B), the worker must know, within the three-year period, that their compensable injury has led to long-term serious consequences of the pain and suffering kind. The court determined that the development of serious economic consequences within this period does not extend the application deadline. The court clarified that "serious injury" should be evaluated based on the particular impact on the worker, taking into account the severity of the pain and suffering consequences for that individual.

The court ordered that Nicolaou's application for compensation was invalid as it was not made within the required three-year period after he became aware of the long-term serious consequences of his injury. The court dismissed the claim, affirming that the specific knowledge of the serious consequences, rather than the economic impact, is the critical factor in determining the timeliness of the application under the Act.

Orders