SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3711 of 2009
| TATIARA MEAT CO PTY LTD | |
| Appellant | |
| v | |
| TYRONE KELSO | Respondent |
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JUDGES: | ASHLEY JA, MANDIE JA and ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 February 2010 | |
DATE OF JUDGMENT: | 16 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 12 | |
JUDGMENT APPEALED FROM | Kelso v Tatiara Meat Co Pty Ltd (Unreported, County Court of Victoria, Judge Millane, 3 February 2009) | |
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ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 – Application granted by County Court – Appeal under s 134AD – Whether pain and suffering consequences of the injury are serious – Serious injury not established – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R P Gorton QC with Mr J P Gorton | Wisewoulds |
| For the Respondent | Mr A D B Ingram with Mr R Stanley | Clark Toop & Taylor |
ASHLEY JA:
I agree with Ross AJA, for the reasons which his Honour gives, that this appeal should be allowed.
MANDIE JA:
I agree with Ross AJA.
ROSS AJA:
Background
On 29 June 2001 the respondent, Tyrone Kelso was working in the appellant’s abattoir when the tip of his right thumb came into contact with a bandsaw and was cut off. He was taken to the Western General Hospital where a plastic surgeon, Mr Ashton, reattached the tip of his thumb. He was discharged from the Western General Hospital on 9 July 2001 but continued to attend as an outpatient until 19 November 2001.
On 24 September 2001, he returned to work with the appellant. Initially he performed packing duties. Later, he returned to duties which included operating a bandsaw. He ceased working for the appellant when it closed down its business. I deal later with his subsequent employment history.
By Originating Motion filed on 6 December 2004, the respondent sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence proceedings for the recovery of pain and suffering damages for the injury to his right thumb sustained in the course of his employment on 29 June 2001. The claimed impairment was impairment of the use of his dominant right hand.
The application came on for trial for the first time before a County Court judge on 22 November 2006. The respondent was the only person to give oral
evidence. Otherwise, a body of documentary material was placed before the learned judge. The application was dismissed and the respondent appealed. The appeal was heard by this Court constituted by a bench of five, on 5 October 2007.[1] The Court’s decision, delivered prior to the decision of the High Court in Dwyer v Calco Timbers Pty Ltd,[2] allowed the appeal and remitted the application for re‑hearing by another judge. The appeal was allowed essentially on the grounds that the learned judge below had failed to deal with relevant evidence or had failed to accommodate that evidence in his reasons.
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- Case
- [2010] VSCA 12
- Decision Date
CaseChat Overview and Summary
The court examined the definition of a serious injury under section 134AB(16)(b) of the Act, focusing on the nature and severity of the pain and suffering. The court considered the medical evidence and the impact of the injury on the claimant's life. In making its decision, the court had to balance the subjective nature of pain against the objective criteria set out in the legislation. It was also necessary to evaluate whether the consequences of the injury met the threshold for a serious injury as defined by the Act.
After thorough consideration, the court concluded that the pain and suffering consequences of the injury did not meet the statutory criteria for a serious injury. The court found that the evidence did not sufficiently demonstrate that the injury had a significant and lasting impact on the claimant's ability to lead a normal life. Consequently, the appeal was allowed, and the original County Court decision was upheld. The claimant's application for compensation was dismissed.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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