SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0045
| MOHAMMAD TAWAKULI | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 February 2020 |
| DATE OF JUDGMENT: | 19 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 22 |
| JUDGMENT APPEALED FROM: | [2019] VCC 354 (Judge Parrish) |
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ACCIDENT COMPENSATION – Workplace injury to right shoulder – Whether injury satisfied statutory definition of ‘serious injury’ – Application for leave to commence proceedings for damages against respondent – Whether judge failed to give proper consideration to applicant’s submission regarding medical report – Whether trial judge failed to provide adequate reasons – Application for leave to appeal refused – Accident Compensation Act 1985 s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Mighell QC with Mr R H Ajzensztat | Zaparas Lawyers |
| For the Respondent | Mr S A O’Meara QC with Ms M Norton | Russell Kennedy Lawyers |
BEACH JA
KYROU JA:
Introduction and summary
On 28 February 2013, the applicant commenced full time employment with Raminti Services Pty Ltd (‘Raminti’) as a fencing and factory hand. Over the course of his employment he experienced pain in his right shoulder. On 6 September 2013, the pain became unbearable and he ceased work.
On 11 January 2018, the applicant applied to the County Court for leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘Act’) to bring common law proceedings against the respondent for damages for pain and suffering and pecuniary loss in respect of the injury. On 28 March 2019, the judge refused leave.[1]
[1]Tawakuli v Victorian WorkCover Authority [2019] VCC 354 (‘Reasons’).
Section 134AB(19) of the Act provides that a court must not give leave under s 134AB(16)(b) unless it is satisfied that the injury is a serious injury. The applicant relied on para (a) of the definition of ‘serious injury’ in s 134AB(37), namely, ‘permanent serious impairment or loss of a body function’.
The applicant seeks leave to appeal against the orders made by the judge on two grounds. The first ground is that the judge failed to give proper consideration to the applicant’s submission that the medical report of Mr Michael Dooley dated 31 October 2017 contained an opinion that the applicant was, by reason of an organic impairment to his right shoulder, precluded from returning to unrestricted employment. The second, alternative, ground is that the judge failed to provide adequate reasons for rejecting that submission.
For the reasons that follow, the application for leave to appeal will be refused.
Facts
The applicant is 43 years of age and was born in Afghanistan. He is married and has a daughter aged 11 and a son aged 13. His wife and children live in Pakistan.
The applicant did not complete any formal education or training and could neither read nor write in his native language, Dari. In Pakistan he worked as a panel beater for approximately 27 years before coming to Australia by boat in October 2012. The boat he…
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- Case
- [2020] VSCA 22
- Decision Date
CaseChat Overview and Summary
The court examined the statutory definition of a ‘serious injury’ and assessed whether Tawakuli’s injury met the criteria. It scrutinised the medical evidence and submissions to determine if the trial judge had properly considered the applicant’s arguments. The court evaluated whether the reasons provided by the trial judge were sufficient and whether they adequately addressed the issues raised by Tawakuli. The application for leave to appeal was assessed based on the arguments presented regarding the trial judge's decision.
The court found that the trial judge had correctly applied the statutory definition and had given proper consideration to the submissions. The reasons provided by the trial judge were deemed adequate, and no error was found that warranted an appeal. The application for leave to appeal was therefore refused.
No further orders were made beyond the refusal of leave to appeal.
Orders
Orders of the court
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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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