ONE FORCE GROUP AUST PTY LTD AND VICTORIAN WORKCOVER AUTHORITY
Respondents
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JUDGES
ASHLEY JA and BEACH AJA
WHERE HELD
MELBOURNE
DATE OF HEARING
13 August 2009
DATE OF JUDGMENT
14 August 2009
MEDIUM NEUTRAL CITATION:
[2009] VSCA 181
JUDGMENT APPEALED FROM
Stijepic v One Force Group Aust Pty Ltd & Anor (Unreported, County Court, Judge Morrow, 24 March 2009)
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ACCIDENT COMPENSATION – Appeal – Serious injury – Pain and suffering consequences of compensable injury – Need to consider complete spectrum of impairments and losses – Significance of return to alternative duties – Need to consider totality of evidence. Sections 134AB, 134AD, Accident Compensation Act 1985 (Vic).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T P Tobin SC with
Mr A E A Macnab
Ryan Carlisle Thomas
For the Respondents
Mr J Ruskin QC with Mr S A O’Meara
Lander & Rogers Lawyers
ASHLEY JA
BEACH AJA:
Introduction
On 9 January 2006, Mr Maro Stijepic, the appellant, was employed as a causal labourer by One Force Group Pty Ltd, the first respondent. On that day, he was required to attend at the premises of Purple Pig (Australia) Pty Ltd to carry out labouring duties. In the course of performing those labouring duties, he was required to assist in unloading a 120 kilogram roll of rubber. While lifting and carrying one end of the roll, a person who was working with the appellant[1] dropped the other end of the roll. As a result, the appellant took the full weight of the roll and suffered injury to his low back.
[1]The appellant could not recall the man’s name; but nothing turns on it.
By an originating motion filed in the County Court, the appellant sought leave, pursuant to s 135AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to bring proceedings at common law against the first respondent.[2] He relied upon paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) – namely ‘permanent serious impairment or loss of a body function’, being the low back.
[2]We assume that the Victorian WorkCover Authority was joined as a second defendant to that application (and thus became the 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 application was heard by a County Court judge on 11 March 2009. At the hearing of the application, the appellant confined his application to one for leave to claim pain and suffering damages only. We assume that he so confined his claim because of an apprehended inability to satisfy sub-paragraph (ii) of s 134AB(38)(b).[3]
[3]See s 134AB(17).
On the hearing of the application, the appellant relied upon affidavits sworn by himself and his mother, and upon medical reports of treating and examining doctors. The…
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
Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Case
[2009] VSCA 181
Decision Date
CaseChat Overview and Summary
Stijepic v One Force Group Aust Pty Ltd involves an appeal against a decision regarding the compensation to be awarded for a serious injury sustained by the plaintiff, Stijepic, during his employment with One Force Group Aust Pty Ltd. The dispute centred on the pain and suffering consequences of the compensable injury and the quantum of compensation. The matter was heard in the Supreme Court of Victoria.
The court was required to determine the appropriate method for assessing the extent of the plaintiff's pain and suffering and the impact of his return to alternative duties on the overall compensation. The case involved the interpretation and application of sections 134AB and 134AD of the Accident Compensation Act 1985 (Vic), which outline the criteria for assessing compensation for pain and suffering in serious injury cases.
The court found that the assessment of pain and suffering should consider the complete spectrum of impairments and losses, including the impact of the return to alternative duties. The court held that the totality of evidence, including the plaintiff's subjective experience of pain and suffering, should be considered in determining the appropriate compensation. The court also emphasised the importance of evaluating the full range of consequences of the injury, rather than focusing solely on the return to alternative duties.
The final orders of the court included a determination of the appropriate compensation for pain and suffering, taking into account the complete spectrum of impairments and losses, as well as the impact of the return to alternative duties. The court directed the parties to negotiate and, if necessary, apply to the court for a determination of the precise amount of compensation.