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Tatiara Meat Co Pty Ltd v Kelso

Tatiara Meat Co Pty Ltd v Kelso

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3711 of 2009

TATIARA MEAT CO PTY LTD
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.

[1](2007) 17 VR 592

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: [2010] VSCA 12
Decision Date: 16 February 2010

CaseChat Overview and Summary

Tatiara Meat Co Pty Ltd filed a claim against Kelso for compensation under the Accident Compensation Act 1985, seeking damages for a serious injury sustained in an accident. The County Court initially found in favour of Kelso, but Tatiara Meat Co Pty Ltd appealed the decision, arguing that the consequences of the injury were serious and warranted compensation. The appeal was heard in the Supreme Court, which was tasked with determining whether the pain and suffering resulting from the injury were indeed serious enough to establish a case for compensation.

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