R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51

Court of Appeal (Vic)|2000-04-19|Before: WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.

For the reasons given by the President, the medical evidence before her Honour was such as to entitle her to form the opinion that the injury produced by the later incident so aggravated the pre-existing injury that it was appropriate to characterise it as a "serious injury". Such a determination by her Honour involved "elements of fact, degree and value judgment" and called for an expression of opinion on the ultimate question.[15] Furthermore, her Honour's reference to Humphries v. Poljak[16], demonstrates that her Honour was aware of the principles to be applied in resolving the ultimate question and that, in the circumstances, she probably applied them to the case before her.

Thus, by making the analysis described, her Honour made the required comparison and the required assessment of the extent of the additional impairment for the purpose of determining whether it was serious and long term. Having concluded that the 1991 injury was not a "serious injury", it was open to her Honour to find, without combining the two injuries, that the second injury caused an additional impairment which amounted to a "serious injury".[17]

Furthermore, in my view, her Honour set out sufficiently in her judgment, albeit very briefly, the essential elements of her reasoning which led to her ultimate decision. This enabled the parties and this Court to understand the reasoning by which her Honour reached her conclusion and to determine whether that reasoning was correct. In the circumstances, her Honour did not err in failing adequately to state her reasons for her decision.[18]

It follows that, in my view, the appellant has not demonstrated that her Honour made any error of principle in reaching the conclusion that the second injury was a "serious injury". As I have already said, it was open to the trial judge to come to that conclusion on the material before her.

In the circumstances, therefore, I agree with the conclusions of the President and Buchanan, J.A. that the appellant's contention that the trial judge erred in finding that the aggravating injury was a "serious" one, should be rejected. I also agree that, for the reasons given by their Honours, the trial judge did err in assessing the compensable loss suffered by the respondent as a result of the "serious injury". Consequently, the appeal should be allowed and the matter should be remitted to the County Court for a new trial limited to the issue of damages.

[11] See Sharp v. Associated Pulp and Paper Mills Ltd. [1989] VicRp 12; [1989] V.R. 139 at 146.

[12] Mobilio & Balliotis [1998] 3 V.R. 833 at 835 per Winneke, P.

[13] Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436 at 443-444.

[15] Mobilio v. Balliotis at 836; Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 366.

[18] Brittingham v. Williams [1932] VicLawRp 35; [1932] V.L.R. 237 at 239; Sun Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 19-20.

Accident Compensation Act 1995

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