Wodonga City Council v Braunack - [2012] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0082
WODONGA CITY COUNCIL	Appellant
v
GABRIELLE BRAUNACK	Respondent

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JUDGES	NETTLE and REDLICH JJA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 August 2012
DATE OF JUDGMENT	18 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 320
JUDGMENT APPEALED FROM	Braunack v Wodonga City Council(No 2) [2011] VCC 958 (Judge Bourke)

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ACCIDENT COMPENSATION – Appeal – Serious injury – Carpal tunnel syndrome – Application under s 134AB(16)(b) of the Accident Compensation Act 1985 – Respondent granted leave to commence proceedings for pain and suffering – Respondent gave conflicting accounts as to her onset of symptoms – Trial judge’s reasons inadequate – Accident Compensation Act s 134AE – Appeal allowed – Matter remitted to County Court for fresh hearing and determination.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S A O’Meara SC Ms J M Forbes	Wisewould Mahony
For the Respondent	Mr J R Moore QC Mr G Pierorazio	Nevin Lenne & Gross

NETTLE JA

REDLICH JA:

The respondent sought leave to commence proceedings against the appellant for pain and suffering in respect of concurrent claims for ‘serious injury’ to her left wrist (carpal tunnel syndrome) and to her left knee. The claims were heard together. The trial judge granted leave in respect of the left wrist and dismissed the application in respect of the left knee.

The respondent appeals against that grant of leave on the grounds that her Honour erred in her finding that there was a causal connection between the respondent’s employment with the appellant and the claimed injury; and that her Honour’s reasons for so doing were inadequate.

The respondent bore the onus of establishing compensable injury which included establishing the causal connection between her left wrist injury and her employment.[1]
[1]S 134AB(2) Accident Compensation Act 1985. Church v Echuca Regional Health (2008) 20 VR 566, 587 [106] (Ashley JA); Jayatilake v Toyota Motor Corporation Ltd (2008) 20 VR 605, 608 [8] (Ashley JA), 630 [142] (Neave JA).

The evidence

The undisputed evidence was that, until the end of February 2005, the respondent worked between 30 and 38 hours per week. On 24 February 2005, she sustained a left knee injury and was absent from work, undergoing surgery in March 2005 and a manipulation under anaesthetic in April 2005. She resumed work with restrictions imposed by Dr Andrews from June 2005 until December 2005. She ceased performing cleaning work in January 2006, as certified by Dr Steele, and commenced maternity leave in early 2006 shortly prior to the birth of her child in March. She returned from maternity leave in late July 2006 working 4.5 hours per week until commencing maternity leave again in late January 2007. She returned to

work 4.5 hours per week from 1 August 2007. Shortly prior to trial in May 2011, she increased her hours to between 9 and 11.5 hours per week.

The respondent did not seek any relevant medical treatment until 15…

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: [2012] VSCA 320
Decision Date: 18 December 2012

CaseChat Overview and Summary

The appeal involved Wodonga City Council and Ms Braunack. The dispute arose from a decision by the County Court of Victoria to grant Ms Braunack leave to commence proceedings for pain and suffering under section 134AB(16)(b) of the Accident Compensation Act 1985. Ms Braunack claimed she sustained a serious injury in a motor vehicle accident, which resulted in carpal tunnel syndrome. The council contested her claim, arguing, among other things, that the trial judge's reasons for granting leave were inadequate. The appeal was heard by the Supreme Court of Victoria.

The central legal issue before the court was whether the County Court judge's reasons for granting Ms Braunack leave to commence proceedings were legally sound. The court had to consider whether the judge's findings regarding Ms Braunack's conflicting accounts of the onset of her symptoms were sufficient to support the grant of leave under the Act. Furthermore, the court examined whether the decision to grant leave was in accordance with the statutory criteria set out in section 134AE of the Act.

The Supreme Court found that the County Court judge's reasons for granting leave were inadequate, as they did not sufficiently address the conflicting accounts given by Ms Braunack about the onset of her symptoms. The Supreme Court held that the County Court judge failed to provide clear and comprehensive reasons that aligned with the statutory criteria. Consequently, the Supreme Court allowed the appeal, quashed the decision of the County Court, and remitted the matter back for a fresh hearing and determination. The Supreme Court emphasized the importance of detailed and legally sound reasons when granting leave under the Act.

Orders