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Pisano v Precision Solid Plasterers Pty Ltd

Pisano v Precision Solid Plasterers Pty Ltd

Case [2012] VSCA 226 19 September 2012

Accident Compensation

Appeal

Adequacy of Reasons

Insurance Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0136
ROBERT PISANO	Appellant
v
PRECISION SOLID PLASTERERS PTY LTD and VICTORIAN WORKCOVER AUTHORITY	Respondents

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JUDGES:	HARPER and TATE JJA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2012
DATE OF JUDGMENT:	19 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 226
JUDGMENT APPEALED FROM:	Pisano v Precision Solid Plasterers Pty Ltd [2011] VCC 1226 (Judge Misso)

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ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 – Inadequacy of reasons – Appeal allowed – Matter remitted for rehearing and determination.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P A Jewell SC with Mr J P Brett	Arnold Thomas & Becker Lawyers
For the Respondents	Mr S A O’Meara SC with Ms J M Forbes	Herbert Geer Lawyers

HARPER JA:
TATE JA:
BEACH AJA:

Introduction

Robert Pisano, the appellant, made application under s 134AB(16)(b) of the Accident Compensation Act1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained in the course of his employment with the first respondent, Precision Solid Plasterers Pty Ltd.[1] The application was heard in the County Court by Judge Misso on 5 and 8 August 2011.
[1]We assume that the Victorian WorkCover Authority was joined as a second defendant to that application (and thus became a second respondent in this appeal) in purported compliance with s 134AB(18) of the Act, which requires a copy of an application under s 134AB(16) to be served on it and each person against whom the appellant claims to have a cause of action.

The appellant relied upon a low back injury, which he claimed was sustained by him in the course of his employment with the first respondent from 20 October 1999, and in particular in and about November 2007. The appellant claimed that this injury satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The application was made in respect of both pain and suffering and pecuniary loss damages.

On the hearing of the application, the appellant relied upon affidavits he swore on 10 March 2010 and 3 August 2011. The appellant and his treating general practitioner, Dr Ng, were the only witnesses to give viva voce evidence. Both sides tendered, without objection, documents from their respective Court Books, including a number of medical reports and reports of radiological examinations.

On 26 August 2011, Judge Misso gave judgment dismissing the appellant’s application.

By notice of appeal filed 9 September 2011, the appellant seeks orders that the appeal be allowed and the proceeding remitted to the County Court for fresh hearing and determination.

The grounds of appeal

In his notice of appeal, the appellant relies upon the following grounds:

1.The Learned Trial Judge erred in determining that, prior to suffering a further aggravation on or about 26 May 2010, the Plaintiff demonstrated a capacity for suitable employment.
2.The Learned Trial Judge erred…

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 Pisano v Precision Solid Plasterers Pty Ltd

Details

AGLC: Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226
Case: [2012] VSCA 226
Decision Date: 19 September 2012

CaseChat Overview and Summary

The case of Pisano v Precision Solid Plasterers Pty Ltd involved a serious injury application under section 134AB(16)(b) of the Accident Compensation Act 1985. The applicant, Pisano, sought compensation for injuries sustained during employment. The respondent, Precision Solid Plasterers Pty Ltd, opposed the claim. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was whether the reasons provided by the tribunal were adequate and sufficient for the decision made. Pisano argued that the reasons were inadequate and insufficient, while the respondent contended that the reasons were appropriate. The court was required to determine whether the tribunal's reasons met the necessary standard under the Act and if the appeal should be allowed.

The Supreme Court found that the reasons provided by the tribunal were inadequate and insufficient. The reasoning did not sufficiently explain the basis for the tribunal's decision, and it failed to address key issues raised by the applicant. Consequently, the appeal was allowed, and the matter was remitted for rehearing and determination by the tribunal. The court emphasised the importance of clear and comprehensive reasons in serious injury applications.

The final orders of the court were that the appeal was allowed, the matter was remitted to the tribunal for rehearing and determination, and each party was to bear their own costs of the appeal.

Orders