ACCIDENT COMPENSATION - Appeal from unsuccessful application for leave to bring common law proceedings for damages - Whether consequences of aggravation of pre-existing asymptomatic degenerative cervical spine condition, or consequences of soft tissue shoulder injury, amounted to ‘serious injury’ - Where adverse findings were made as to credit when credit was not in issue - Appeal allowed - Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, followed - Barwon Spinners v Podolak (2005) 14 VR 622, discussed - Accident Compensation Act 1985, ss134AB(16)(b), 134AB(19)(a), 134AB(37), 134AB(38)(c), 134AD.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr A D B Ingram and Ms E McKinnon
Melbourne Injury Lawyers Pty Ltd
For the Respondent
Mr J Ruskin QC and Mr S A O’Meara
Minter Ellison
ASHLEY JA:
I have read in draft the reasons for judgment of Tate JA and I respectfully agree with them.
TATE JA:
Introduction
Richard Sutton, the appellant, was employed as a forklift driver by Laminex Group Pty Limited, the respondent, when, on 13 February 2001, in attempting manually to connect a trolley to a forklift, he suffered strain to his neck and right shoulder.
By an originating motion filed in the County Court, the appellant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to bring proceedings at common law against the respondent to recover damages for pain and suffering in respect of an injury to the neck (particularly, the aggravation of pre-existing asymptomatic degeneration of the cervico-thoracic spine) and a soft tissue injury to the right shoulder. He sought to demonstrate that he satisfied the requirement for leave under s 134AB(19)(a), that ‘the injury is a serious injury’, by relying on paragraph (a) of the definition of ‘serious injury’ under s 134AB(37), namely, that he had suffered ‘permanent serious impairment or loss of a body function’. The appellant did not rely upon any aggregation of different injuries, but rather on the principle that two separate and distinct compensable injuries may cause the same consequences which to him represented serious injury consequences.[1]
The application for leave to bring proceedings at common law was heard on 18 May 2009. It was accepted at the hearing of the application that the appellant had
suffered the two compensable injuries. The application was refused by the County Court judge[2] on the basis that the appellant had…
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
AGLC
Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Case
[2011] VSCA 52
Decision Date
CaseChat Overview and Summary
The case of Sutton v Laminex Group Pty Ltd involved the plaintiff seeking to appeal an unsuccessful application for leave to bring common law proceedings for damages. The plaintiff, who suffered a soft tissue shoulder injury and an aggravation of a pre-existing asymptomatic degenerative cervical spine condition, contended that these injuries constituted a 'serious injury' under the Accident Compensation Act 1985. The court was tasked with determining whether the consequences of the aggravated condition or the shoulder injury amounted to a 'serious injury'. The appeal was heard in the Supreme Court of Victoria.
The primary legal issue was whether the plaintiff's injuries met the criteria for a 'serious injury' under the Act, specifically whether the aggravation of a pre-existing condition or the shoulder injury alone qualified as a serious injury. The court needed to consider the definitions and thresholds set out in the Act, and assess the evidence presented regarding the nature and extent of the injuries. The court also had to address the adverse findings made about the plaintiff's credibility, despite the fact that credit was not an issue in the proceedings.
The court concluded that the appeal should be allowed. It held that the adverse findings about the plaintiff's credibility were not properly before the court, as credit was not in issue. The court followed the decision in Haden Engineering Pty Ltd v McKinnon, which emphasised the importance of not making findings on credit when it is not an issue. The court also discussed Barwon Spinners v Podolak, which provided guidance on the interpretation of the 'serious injury' provision in the Act. Ultimately, the court found that the plaintiff's injuries did amount to a 'serious injury', and remitted the matter to the tribunal for further consideration. The appeal was thus allowed, and the matter was returned to the tribunal for reassessment.