ACCIDENT COMPENSATION – Workers’ compensation – Appeal from grant of leave to bring common law proceedings – Workplace injury – Hand injury – Whether ‘serious injury’ – ‘Pain and suffering consequences’ of injury – Whether ‘more than significant or marked and … at least very considerable’ – Intensity and frequency of pain – Disabling effect of pain – Subsequent injury to knee – Pain and suffering consequences also attributable to subsequent injury – Whether necessary to separate consequences attributable to hand injury from consequences attributable to knee injury – Whether open to conclude that consequences attributable to hand injury satisfied statutory test – Appeal allowed – Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2012) 31 VR 100 applied – Accident Compensation Act 1985 (Vic) ss 134AB(16)(b), 134AB(38)(c).
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APPEARANCES:
Counsel
Solicitors
For the First and Second Appellants
Mr J P Gorton SC with Ms J M Forbes
Thomsons Lawyers
For the Respondent
Mr R W McGarvie SC with Ms M Pilipasidis
Ryan Carlisle Thomas
MAXWELL P:
Summary
It is difficult enough for a judge to decide whether the ‘pain and suffering consequences’ of a workplace injury satisfy the statutory definition of ‘serious injury’. But the task becomes a good deal more difficult when, by the time of the trial, a separate injury is also producing pain and suffering consequences for the claimant. This difficulty arises, for example, where between the time of the relevant injury and the Court’s assessment of its consequences, the claimant sustains a different injury which itself has relevant, and continuing, pain and suffering consequences. The present is just such a case.
The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and … at least very considerable’.[1] For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.
In this case, the original injury sustained by the respondent, Mr McKenzie, was an injury to his left hand. That injury, which he sustained in February 2004 (the ‘2004 injury’), is the subject of this proceeding. Mr McKenzie was employed by the first appellant, Peak Engineering Pty Ltd, at the time of the 2004 injury, but that employment ceased in April 2005.
Mr McKenzie returned to work in mid-2006, having had a medical clearance from his GP for full normal duties. His first job, in…
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
AGLC
Peak Engineering & Anor v McKenzie [2014] VSCA 67
Case
[2014] VSCA 67
Decision Date
CaseChat Overview and Summary
Peak Engineering and another entity brought an appeal against a decision that granted leave to McKenzie to bring common law proceedings for an injury she sustained in the workplace. The dispute revolves around whether McKenzie's hand injury constitutes a 'serious injury' under the statutory definition, specifically considering the 'pain and suffering consequences' of the injury. The appeal was heard in the Supreme Court of Victoria.
The legal issues before the court were whether the consequences of the pain and suffering from McKenzie's hand injury were 'more than significant or marked and... at least very considerable' and whether the consequences attributable to a subsequent knee injury should be separated from those attributable to the hand injury. The court had to determine if it was open to conclude that the consequences attributable to the hand injury alone satisfied the statutory test for a 'serious injury'.
The court, in its reasoning, found that the consequences of the pain and suffering from McKenzie's hand injury were more than significant or marked and at least very considerable. It was noted that the intensity and frequency of the pain, along with its disabling effect, played a significant role in this determination. The court also concluded that it was unnecessary to separate the consequences attributable to the hand injury from those attributable to the knee injury, as the statutory test could still be satisfied by considering the former alone. The appeal was allowed, and the decision was based on precedents such as Haden Engineering Pty Ltd v McKinnon and Sutton v Laminex Group Pty Ltd. The relevant sections of the Accident Compensation Act 1985 (Vic) were also considered in the judgment.
The final orders of the court were that the appeal was allowed, and the decision granting leave to bring common law proceedings was quashed. The case was remitted to the original tribunal for further consideration in light of the court's determination.