ACCIDENT COMPENSATION – Appeal – Workplace accident – Serious injury application – Psychiatric injury – Whether applicant suffered permanent severe mental or behavioural disturbance or disorder – Applicant found to be entirely unreliable – Relevance and importance of applicant’s histories to doctors – Whether sufficient evidence to support medical opinions – Supportive evidence not subject of cross-examination – Whether judge was required to accept supportive evidence – Whether judge wrongly rejected evidence – Whether judge rejected applicant’s evidence without considering it in context of whole of evidence – No error made by judge – Application for leave to appeal refused – Accident Compensation Act 1985, s 134AB.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J P Gorton QC with Mr C Hangay
Zaparas Lawyers
For the Respondent
Mr M F Wheelahan QC with Mr S E Gladman
Lander & Rogers
BEACH JA KAYE JA NIALL JA:
In November 2010, the applicant commenced employment with a labour hire firm, Skilled Group Ltd. In the course of that employment, the plaintiff worked as a grind house operator and loader driver at the premises of Incitec Pivot Pty Ltd (‘Incitec’). Incitec ran a fertiliser plant located in North Shore, Geelong.
On 4 July 2011, the applicant was operating a front-end loader at Incitec’s premises. From time to time, he heard radio reports from his co-worker, Mr Bradley Mark. Mr Mark was cleaning the rollers of a conveyor belt on a machine in another part of the factory.
After a while, the applicant noticed that he had not heard from Mr Mark. The applicant decided to check on Mr Mark. Upon arriving at the machine that Mr Mark had been cleaning, the applicant saw a hard hat on the ground. He looked up and saw Mr Mark hanging upside down in front of him. The applicant hit the emergency stop switch, but the conveyor belt continued to operate. After calling for assistance on his two-way radio, the applicant attempted to release Mr Mark from the machine using a forklift. Eventually, the applicant was able to lower Mr Mark to the ground where he was soon after assisted by ambulance officers.
By an originating motion filed in the County Court on 5 July 2017, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to commence a proceeding at common law claiming damages for personal injury. In his proceeding, the applicant alleged that he sustained a psychiatric condition as a result of observing what occurred to Mr Mark (‘the incident’). The claim for leave under s 134AB(16)(b) was made relying upon para (c) of the definition of ‘serious injury’ in s…
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
Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Case
[2018] VSCA 243
Decision Date
CaseChat Overview and Summary
The case of Petrovic v Victorian WorkCover Authority involved an appeal against a decision regarding a serious injury application following a workplace accident. The applicant claimed psychiatric injury, but the judge found the applicant's evidence to be entirely unreliable. The Victorian WorkCover Authority sought to have the applicant's application dismissed, and the matter proceeded to the Court of Appeal. The primary legal issue was whether the applicant had suffered a permanent severe mental or behavioural disturbance or disorder, as required by the Accident Compensation Act 1985. The Court had to determine if the judge was correct in rejecting the applicant’s evidence and whether the judge appropriately considered the supportive evidence that was not subject to cross-examination.
The Court of Appeal found that the judge had not erred in rejecting the applicant's evidence, as it was entirely unreliable. The supportive evidence, while not subject to cross-examination, was considered in the context of the whole evidence presented. The Court held that the judge was not required to accept the supportive evidence if it was inconsistent with the applicant’s own evidence. Furthermore, the judge was entitled to reject the applicant's evidence without considering it in isolation, as it was found to be entirely unreliable. The Court concluded that no error was made by the judge, and the appeal was dismissed.
The Court also addressed whether the judge wrongly rejected the applicant’s evidence. It was determined that the judge had not rejected the evidence without considering it in the context of the whole evidence. The judge had thoroughly assessed all the evidence presented and found the applicant's evidence to be entirely unreliable, which was a valid basis for dismissal. Given these findings, the Court held that the decision of the judge was sound and there was no basis for allowing the appeal. Consequently, the applicant's application for leave to appeal was refused.