Storer v Warambat Pty Ltd - [2009] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3854 of 2008

DAMIAN JOHN STORER
	v
WARAMBAT PTY LTD

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JUDGES	Mandie JA and Beach AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 September 2009
DATE OF JUDGMENT	18 September 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 210
JUDGMENT APPEALED FROM	[2008] VCC 1159 (Judge Jenkins)

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ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act1985 – Application refused by County Court – Appeal to Court of Appeal under s 134AD – Serious injury not established – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J A Riordan with Mr S R McCredie	Nevin Lenne & Gross
For the Respondent	Mr R P Gorton QC with Mr S A O’Meara	Wisewould Mahony

MANDIE JA
BEACH AJA:

Introduction

On 1 June 2001, Mr Damian Storer, the appellant, was employed as a truss fabricator by Warambat Pty Ltd, the respondent. On that day, the appellant suffered injury to his upper back when he stepped off an uneven surface while carrying what he has variously referred to as ‘a heavy roof truss’,[1] ‘trusses’[2] or ‘hips’.[3] Whatever the appellant was actually carrying, when he stepped off the surface he describes as ‘unlevel’, he heard a ‘cracking noise’ in his back.
[1]See [4] of the appellant’s affidavit sworn 17 May 2006.
[2]See the appellant’s claim for compensation dated 7 June 2001.
[3]See T16.21 and T17.10 of the transcript below, and note further the appellant’s evidence at T16.21 that the ‘hips’ were smaller than trusses.

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 respondent. 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’. The body function is described in the parties’ joint summary of proceedings, issues and facts as ‘the thoracic spine’. However, in the judgment below it is described as the ‘thoracic spine, specifically a soft tissue injury aggravation to pre-existing spinal osteochondritis (Scheuermann’s disease)’.[4]
[4]Judgment below, [2].

The application was heard by a County Court judge on 7 and 8 August 2008. On the hearing of the application, the appellant relied upon affidavits sworn by himself and upon medical reports of treating and examining doctors. The respondent relied principally upon medical reports and documents related to return to work plans and possible alternative employments. The appellant, who was cross-examined, was the only witness heard orally. During the course of his cross-examination, surveillance video taken of the appellant on 20 and 21 November 2002 and 31 January 2007 was played and tendered.

On 12 September 2008, the County Court judge dismissed the appellant’s application.

The appellant now appeals to this Court. While there were originally four grounds of appeal, the appeal is now confined to ground 4.[5] Ground 4 is expressed in the following terms:

The Court of…

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.

Continue reading Storer v Warambat Pty Ltd

Details

AGLC: Storer v Warambat Pty Ltd [2009] VSCA 210
Case: [2009] VSCA 210
Decision Date: 18 September 2009

CaseChat Overview and Summary

Storer was the plaintiff in a proceeding against Warambat Pty Ltd, seeking damages for injuries sustained in a workplace accident. The matter was heard in the Court of Appeal of Victoria. The plaintiff had previously been refused a serious injury certificate by the County Court, which was necessary to allow his application for damages to proceed. The plaintiff appealed this decision to the Court of Appeal.

The appeal raised the issue of whether the trial judge erred in finding that the plaintiff did not satisfy the statutory criteria for a serious injury. The court had to determine whether the plaintiff had established the requisite degree of impairment as defined under the Accident Compensation Act 1985. The appeal hinged on the interpretation of medical evidence and the application of the statutory criteria to the plaintiff’s condition.

The Court of Appeal found that the trial judge correctly assessed the evidence and concluded that the plaintiff had not met the threshold for a serious injury. The court noted that the plaintiff's medical reports did not substantiate the extent of impairment required by the legislation. The appeal was dismissed, affirming the County Court's refusal to issue a serious injury certificate. The Court of Appeal upheld the decision, stating that the plaintiff had not established the necessary criteria for a serious injury under the Act.

The Court of Appeal dismissed the appeal and affirmed the decision of the County Court. The plaintiff’s application for a serious injury certificate was refused, and as a result, the plaintiff’s application for damages could not proceed.

Orders