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.
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’.
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.
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
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…
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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AGLC
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."