Pullicino v Burden's Plumbing (Vic) Pty Ltd - [2019] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0094

EMMANUEL PULLICINO	Applicant
v
BURDEN’S PLUMBING (VIC) PTY LTD	Respondent

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JUDGES:	KAYE and T FORREST JJA and CHAMPION AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2019
DATE OF JUDGMENT:	17 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 88
JUDGMENT APPEALED FROM:	[2018] VCC 996 (Judge Misso)

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ACCIDENT COMPENSATION – Application for leave to appeal – Workplace injury – Serious injury application – Injury to shoulders – Whether exacerbation or aggravation of pre-existing injuries ceased – Whether findings open on medical evidence – Whether judge’s reasons inadequate – Application for leave to appeal refused – Petkovski v Galletti [1994] 1 VR 436 considered – Accident Compensation Act 1985 s 134AB, Workplace Injury Rehabilitation and Compensation Act 2013 pt 6 div 3, pt 7 div 2.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J M Forbes QC with Mr L B R Allan	Ms N Grech, Slater & Gordon Lawyers
For the Respondent	Mr J P Gorton QC with Mr R Kumar	Ms A Forgione, Injury Disputes Practice

KAYE JA
T FORREST JA
CHAMPION AJA:

Background

On 8 October 2014, the applicant, Emmanuel Pullicino, commenced work with Burden’s Plumbing (Vic) Pty Ltd as a driver on a casual basis. He was then aged 52. His duties involved loading, unloading and carrying plumbing supplies, including pipes, drainage pits, bags of concrete and copper piping. He claims that as a result of those duties, he ‘was getting pain in [his] shoulders, particularly in [his] right shoulder’. He further claims that on 7 November 2014, while collecting a pipe from a building site, he was required to walk on uneven ground. He stumbled and ‘felt pain immediately in [his] shoulders’. He attempted to return to work twice since then but was unsuccessful. He has not worked since mid-2016.

By an originating motion filed in the County Court on 30 October 2017, the applicant sought leave, pursuant to s 134AB of the Accident Compensation Act 1985, to issue common law proceedings for the ‘recovery of damages, which request [had] been denied by the WorkCover Insurer for the [respondent]’. At the hearing in the County Court, the applicant clarified that the originating motion in fact sought leave under pt 7 div 2 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’).

The application was heard by a judge of the County Court on 15, 16 and 17 May 2018. The applicant alleged two causes of compensable injuries — the heavy nature of the work and the discrete incident on 7 November 2014 that we have described in paragraph 1 of these reasons.

The applicant contended that the ‘impaired body function’ was ‘bilateral shoulder function’. His Honour concluded that the affected function was part of ‘manual function’[1] and therefore, was capable of being considered as a single body function without indulging in ‘impermissible aggregation’.[2] No issue is taken with this conclusion.
[1]Pullicino v Burden’s Plumbing (Victoria) Pty Ltd [2018]…

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: [2019] VSCA 88
Decision Date: 17 April 2019

CaseChat Overview and Summary

The applicant, Pullicino, filed an application for leave to appeal a decision made by the County Court of Victoria concerning a serious injury application. The dispute pertains to a workplace injury sustained by Pullicino, who claims that his shoulders were injured. The core issues revolved around whether the exacerbation or aggravation of Pullicino’s pre-existing injuries had ceased and whether the findings made by the trial judge were open on the medical evidence provided. Additionally, Pullicino argued that the judge's reasons were inadequate.

The court examined whether the trial judge's findings were open to the evidence presented and whether the reasoning provided was sufficient. The court considered the relevant legislation, including sections 134AB of the Accident Compensation Act 1985 and parts 6, division 3, and part 7, division 2 of the Workplace Injury Rehabilitation and Compensation Act 2013. The court also looked at the precedent set by Petkovski v Galletti [1994] 1 VR 436. After thorough consideration, the court found that the trial judge’s findings were open to the evidence and that the reasons provided were adequate.

Consequently, the court dismissed Pullicino’s application for leave to appeal. The court held that the trial judge’s determination was appropriate given the evidence and legal principles applied. The application for leave to appeal was refused, and the original decision of the County Court of Victoria was upheld.

Orders