ACCIDENT COMPENSATION – Application for leave to recover damages for pain and suffering and loss of earning capacity pursuant to s 134AB(16)(b) Accident Compensation Act 1985 – Conflicting expert medical opinion – Whether appellant had bilateral carpal tunnel syndrome – Whether pain and suffering consequences very considerable – Whether loss of earning capacity to requisite degree attributable to organic injury – Relevance of non-organic injury – Relevance of appellant’s credit when assessing consequences – Whether credit impaired by video surveillance footage and exaggerated presentation to doctors – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J Kennan SC Mr A D B Ingram
Clark and Toop
For the Respondent
Mr J Ruskin QC Mr J P Gorton
Thomson Playford Cutlers
WARREN CJ DODDS-STREETON JA:
The appellant, Blazenka Sabanovic, appeals pursuant to s 74 of the County Court Act 1958 as affected by ss 134AC and 134AD of the Accident Compensation Act 1985 (‘the Act’) from the judgment of a judge of the County Court given on 29 November 2007.
The appellant applied below pursuant to s 134AB(16)(b) of the Act for leave to commence proceedings for damages for pain and suffering and loss of earning capacity for, as provided by s 134AB(19)(a), a serious injury within the meaning of paragraph (a) of the definition in s 134AB(37) of the Act, allegedly sustained to her hands, wrists, arms, shoulders and aggravated in the neck during the course of her employment with the respondent, ATCO Controls Pty Ltd (ATCO), between 20 October 1999 and 11 September 2001.
The primary judge dismissed the application. He also ordered the appellant to pay the respondent’s costs of the proceeding.
Grounds of Appeal
The appellant appealed on the following grounds:
1. The learned trial Judge was in error in that he failed to give sufficient weight to the findings of nerve conduction studies.
2. The learned trial Judge was in error in that he failed to give sufficient weight to medical opinions based upon the findings of such nerve conduction studies.
3. The reasons for judgment are inadequate in that they failed to analyse the Appellant’s physical condition by reference to the diagnostic tests performed and the opinions based upon those tests.
4. The learned trial Judge placed excessive weight upon his observation of the video film of the Appellant in circumstances where there was no medical evidence that the activities there demonstrated were inconsistent with the organic injury demonstrated to have been suffered by the Appellant.
5. The reasons for judgment are inadequate in that they failed to deal adequately or at all with the Appellant’s claim for loss of earning capacity.
6. The learned trial…
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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AGLC
Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143
Case
[2009] VSCA 143
Decision Date
CaseChat Overview and Summary
In Sabanovic v Atco Controls Pty Ltd, the appellant, Mr. Sabanovic, sought leave to recover damages for pain and suffering and loss of earning capacity under section 134AB(16)(b) of the Accident Compensation Act 1985. The respondent, Atco Controls Pty Ltd, opposed the application, arguing that the appellant did not have bilateral carpal tunnel syndrome, that the pain and suffering consequences were not very considerable, and that the loss of earning capacity was not to the requisite degree attributable to an organic injury. The case was heard in the Supreme Court of Queensland.
The primary legal issues before the court were whether the appellant had bilateral carpal tunnel syndrome, whether the pain and suffering consequences were very considerable, and whether the loss of earning capacity was to the requisite degree attributable to an organic injury. Additionally, the court considered the relevance of non-organic injury and the appellant's credit when assessing the consequences of the injury. The court needed to determine whether the appellant's credit was impaired by video surveillance footage and exaggerated presentation to doctors.
The court found that there was conflicting expert medical opinion on whether the appellant had bilateral carpal tunnel syndrome. However, the court concluded that the appellant did not have bilateral carpal tunnel syndrome. The court also found that the pain and suffering consequences were not very considerable and that the loss of earning capacity was not to the requisite degree attributable to an organic injury. The court held that the relevance of non-organic injury was not a factor in the assessment of the consequences of the injury. The court further found that the appellant's credit was impaired by video surveillance footage and exaggerated presentation to doctors. As a result, the appeal was dismissed.
The final orders of the court were that the appellant's application for leave to recover damages for pain and suffering and loss of earning capacity was dismissed. The court found that the appellant did not meet the criteria for recovery of damages under section 134AB(16)(b) of the Accident Compensation Act 1985. The court also found that the appellant's credit was impaired by video surveillance footage and exaggerated presentation to doctors, which was a relevant factor in the assessment of the consequences of the injury.