Samoiloff v Grandiflora Nurseries Pty Ltd - [2018] VSC 765

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 01852

MARGARET RUTH SAMOILOFF	Appellant
v
GRANDIFLORA NURSERIES PTY LTD	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2018
DATE OF JUDGMENT:	10 December 2018
CASE MAY BE CITED AS:	Samoiloff v Grandiflora Nurseries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 765

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WORKERS’ COMPENSATION – Appeal from Magistrates’ Court against dismissal of claim for compensation under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Appellant’s disc prolapse an aggravation of pre-existing cervical spondylosis – Magistrate found appellant did not suffer a ‘work injury’ – Whether Magistrate erred by focusing on ‘significant contributing factor’ test in s 40(3) and not considering ‘arising out of employment’ test in s 39(1) – Tests are separate and distinct but may overlap – No discernible difference in this case – Magistrate’s approach reflected parties’ conduct of hearing – No error – Whether Magistrate’s finding that appellant ‘threw her head back while showering’ was open on the evidence or procedurally unfair – Finding not open – Finding not raised with appellant – Rule in Browne v Dunn – Appeal allowed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 39(1), 40(3).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S O’Meara QC with Mr A Coote	Slater & Gordon
For the Respondent	Mr JP Gorton QC with Mr MJ Hooper	Russell Kennedy

HER HONOUR:

Grandiflora Nurseries Pty Ltd is a wholesaler of fresh flowers, mainly roses. Margaret Samoiloff worked for Grandiflora for at least 16 years, until she was made redundant in September 2015. She was a dedicated and reliable employee. Her work involved picking and packing orders of flowers and, every second Saturday and Tuesday, taking a truckload of flowers to the Footscray Market. It was mainly physical work that included, on some days, lifting up to 100 buckets, each quarter to half full of water, containing up to 10 bunches of flowers.

On Tuesday 4 August 2015, Ms Samoiloff was due to attend the Footscray Market. This involved an early start – arriving at work at 1.00 a.m. to collect the flowers, and then driving to the market to arrive by 1.30 a.m. At about 12.30 a.m., while she was in the shower at home, she put her head back to wash her hair and suffered severe pain at the back of her head – more severe than anything she had previously encountered. The cause of this pain was later diagnosed as a disc prolapse at C6/7, for which she underwent surgery on 20 October 2015.

Ms Samoiloff claimed compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Her claims were rejected by Grandiflora’s claims agent, and she applied to the Magistrates’ Court for review. The injuries for which she claimed compensation were aggravation of degenerative disc disease in the cervical spine, acute prolapse of the C6/7 disc and…

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: [2018] VSC 765
Decision Date: 10 December 2018

CaseChat Overview and Summary

Samoiloff, the appellant, brought a claim against Grandiflora Nurseries Pty Ltd, the respondent, for workers' compensation following a disc prolapse that she contended was an aggravation of pre-existing cervical spondylosis. The matter was dismissed by the Magistrates' Court of Victoria, and Samoiloff now appeals that decision. The appeal raises questions about the interpretation and application of the statutory provisions governing workers' compensation claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The legal issues before the court involved whether the Magistrate erred in his approach to determining if Samoiloff's condition constituted a 'work injury'. The court needed to decide if the Magistrate correctly applied the statutory tests for determining whether an injury arose out of employment and if there was a significant contributing factor in the workplace. The Magistrate focused on the latter test but did not explicitly consider the former, leading to questions about the correct legal approach. The court had to determine if the Magistrate's findings were legally sound and based on the evidence presented.

The court found that while the tests in ss 39(1) and 40(3) are separate, they may overlap and in this case, there was no discernible difference in outcome. The Magistrate's approach to the evidence reflected the conduct of the hearing, and the court held that there was no error in his decision-making process. Furthermore, the court found that the Magistrate's conclusion that Samoiloff threw her head back while showering was not open on the evidence, as this specific incident was not raised with her during the hearing. The court held that the appeal was well-founded on these grounds, and the appeal was allowed.

The court's final orders were to set aside the decision of the Magistrates' Court and remit the matter back for further consideration in light of the appeal decision. The parties were directed to bear their own costs of the appeal.

Orders