TTB SMS Pty Ltd v Reading

Case [2020] VSCA 203


SUPREME COURT OF VICTORIA  

COURT OF APPEAL

S EAPCI 2020 0001

TTB SMS Pty Ltd
(ACN 106 192 670)
Applicant

v

SCOTT LAWRENCE READING

Respondent

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JUDGES: TATE and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 28 July 2020
DATE OF JUDGMENT: 12 August 2020
MEDIUM NEUTRAL CITATION: [2020] VSCA 203
JUDGMENT APPEALED FROM: [2019] VCC 1863 (Judge KL Bourke)

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CIVIL LAW – Application for leave to appeal – Pain and suffering damages – Meaning of serious injury – ‘At least very considerable’ test – Primary judge’s conclusion plainly wrong or wholly erroneous – Impairment consequences of permanent injury – Accident Compensation Act 1985 s 134AB, County Court Act 1958 s 74 – Mobilio v Balliotis (1998) 3 VR 833, Humphries v Poljak (1992) 2 VR 129, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Haden Engineering Pty Ltd v McKinnon (2010) 3 VR 1, considered.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr JP Gorton QC
with Mr SE Gladman
Wisewould Mahoney
For the Respondent   Mr A Ingram QC
with Mr MJ Garnham
Slater & Gordon Pty Ltd

TATE JA

T FORREST JA:

Introduction

  1. The respondent to this application for leave to appeal applied to the County Court for leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to bring a proceeding for pain and suffering damages in respect of an injury to the middle and little fingers of his right hand.  He was granted leave by a judge on 18 November 2019.[1]  The respondent is right hand-dominant and he sustained the injury in the course of his employment on 4 September 2007.  This is close to 13 years ago.

    [1]Scott Lawrence Reading v TTB SMS Pty Ltd [2019] VCC 1863, [168] (Judge KL Bourke) (‘Reasons’).

  1. To avoid confusion, we shall refer to Mr Reading, who was the applicant to the original application, but is the respondent to this application for leave to appeal, as the ‘worker’.  For the same reason, we shall refer to TTB SMS Pty Ltd as the ‘employer’.

  1. The employer’s single ground of appeal is as follows:

Ground 1

On a proper evaluation of the impairment consequences found by the primary judge, the [worker’s] hand injury did not meet the statutory test contained in s 134AB(38) of the Act for it to qualify as a ‘serious injury’, and the primary judge’s conclusion was plainly wrong.

  1. It will be immediately apparent that no issue is taken with the ‘impairment consequences’ found by the primary judge, but rather with the ultimate conclusion that those consequences met the s 134AB(38) test for ‘serious injury’. Thus, the issue to be canvassed in this ground is quite narrow and it will be unnecessary to go beyond her Honour’s reasons for judgment in evaluating the impairment consequences.

The judge’s reasons

  1. No issue is taken with the judge’s exposition of the relevant principles. As we have said, the employer’s argument is simply that, if these principles were…

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TTB SMS Pty Ltd v Reading [2020] VSCA 203
Case
[2020] VSCA 203
Decision Date

CaseChat Overview and Summary

In the case of TTB SMS Pty Ltd v Reading, the applicant sought leave to appeal against a decision concerning the assessment of pain and suffering damages following a serious injury. The matter was heard in the Supreme Court of Victoria. The central dispute was the interpretation of the phrase "serious injury" within the context of the Accident Compensation Act 1985 and the County Court Act 1958. The applicant contended that the primary judge's conclusion on the degree of impairment was plainly wrong or wholly erroneous, particularly in light of the statutory requirement that the injury be "at least very considerable."

The court was tasked with determining whether the primary judge's interpretation of the statutory criteria for a "serious injury" was correct, and if the degree of impairment was accurately assessed. The primary judge had concluded that the injury did not reach the threshold of "serious" under the statutes, which the applicant argued was erroneous given the extent of the impairment. The court had to consider previous cases such as Mobilio v Balliotis, Humphries v Poljak, Dwyer v Calco Timbers Pty Ltd (No 2), and Haden Engineering Pty Ltd v McKinnon to ascertain the appropriate standard of review and the meaning of "serious injury" in the context of statutory interpretation.

The Supreme Court held that the primary judge's interpretation of the statutory criteria was correct and that the degree of impairment did not meet the threshold for a "serious injury" as defined in the statutes. The court found that the applicant had not demonstrated that the primary judge's conclusion was plainly wrong or wholly erroneous. The applicant's application for leave to appeal was therefore dismissed. The court's decision was grounded in a careful analysis of the statutory language and relevant case law, confirming the primary judge's assessment of the injury's severity and the appropriate legal standards for determining a "serious injury."

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Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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