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Sabo v George Weston Foods

Sabo v George Weston Foods

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3864 of 2008

VLADIMIR SABO	Appellant
	v
GEORGE WESTON FOODS	Respondent

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JUDGES	NEAVE and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2009
DATE OF JUDGMENT	23 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 242
JUDGMENT APPEALED FROM	Sabo v George Weston Foods [2008] VCC 1187

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ACCIDENT COMPENSATION – Worker – Appeal against refusal of lower court to grant leave to commence proceedings to recover damages – Whether injury a serious injury within the definition in sub-ss 134AB(37)(a), (38)(b) and (c) of the Accident Compensation Act 1985 – Appeal dismissed.

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Appearances:	Counsel	Solicitors
Appellant	Mr J R Moore QC with Mr M J Walsh	Vincent Verduci & Associates
Respondent	Mr J Ruskin QC with Mr S A O’Meara	Minter Ellison

NEAVE JA:
MANDIE JA:

Introduction

The appellant, Mr Vladimir Sabo, was employed by the respondent, George Weston Foods, as a line-leader in its food processing factory. On 5 February 2004, he was pushing a steel cage full of salami weighing 500 to 600 kilograms along a suspended rail when it became stuck. Mr Sabo injured his back when he used force to free the cage and move it to the refrigerator room.

Mr Sabo reported the injury to his supervisor and went to the first aid room, where the attendant gave him some cream to ease the pain and sent him back to work. Mr Sabo continued to work for about two weeks, but his back pain worsened and on 16 February 2004 he was unable to get out of bed. His wife took him to see a general practitioner, Dr Robert Padanyi, who prescribed analgesic medication and provided him with certificates of incapacity for about two months. Over that period Mr Sabo received physiotherapy and took medication to relieve his pain.

On 1 April 2004 he returned to work for two hours per day, five days per week. By 20 September 2004 he was able to work as a forklift driver at the factory for eight hours per day, five days per week. He drives the forklift on a level concrete surface, so that it does not jolt his back, and cannot bend, twist or lift heavy weights. He continues to take analgesics and anti-inflammatory drugs to relieve his symptoms.

Mr Sabo commenced proceedings in the County Court seeking leave to commence proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to recover common law damages for pain and suffering. He now appeals against the refusal to grant that leave.

The evidence

Mr Sabo and his wife swore affidavits in support of his application and Mr Sabo gave evidence in the proceedings below. Dr Padanyi, Mr Sabo’s general practitioner, provided clinical notes on which Mr Sabo relied and also gave evidence. A number of other medical reports were tendered. The evidence can be summarised as follows.

Ms Rada Glisic

Ms Glisic is Mr Sabo’s wife. In her affidavit sworn on 7 August 2008…

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: [2009] VSCA 242
Decision Date: 23 October 2009

CaseChat Overview and Summary

Sabo filed an appeal against the lower court's refusal to grant leave to commence proceedings to recover damages following an accident. The defendant, George Weston Foods, contested the claim, arguing that the injury sustained by Sabo did not meet the criteria for a "serious injury" under the Accident Compensation Act 1985. The court was tasked with determining whether the injury in question was indeed a serious injury within the definitions provided in sub-sections 134AB(37)(a), (38)(b) and (c) of the Act.

The legal issues revolved around the interpretation and application of the statutory definition of a serious injury and whether the injury suffered by Sabo met the specified criteria. The court examined the specific provisions of the Act and assessed the evidence presented to determine if the injury warranted classification as serious. The court considered the nature of the injury, the extent of its impact on Sabo's physical and psychological health, and the likelihood of a significant effect on his capacity to gain or maintain employment.

After a thorough examination of the statutory provisions and the evidence, the court concluded that Sabo's injury did not meet the criteria for a serious injury as defined by the Act. The court found that while Sabo had suffered injuries, they did not meet the threshold of seriousness required for the purposes of the appeal. Consequently, the appeal was dismissed, and the lower court's decision was upheld.

Orders