Wills v A C Nielsen Pty Ltd & Anor

[2007] VSCA 159

Victorian Court of Appeal

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Interrogate

Catchwords

1. Accident Compensation
2. › Serious injury
3. › Compensable injury arising after 20 October 1999
4. › Whether injury referable to employment on or after due date
5. › Pre-existing injury to lower back
6. › Whether exacerbation after due date
7. › Accident Compensation Act 1985 (Vic), ss 5, 134AB
1. Appeal
2. › Appellate review of findings of fact
3. › Credibility findings by trial judge
4. › Weight to be given to advantages of trial judge
5. › Whether incontrovertible facts or uncontested testimony showed findings wrong
6. › Fox v Percy (2003) 214 CLR 118
1. Practice and Procedure
2. › Appeal
3. › New argument on appeal
4. › Whether appellant may change basis of claim on appeal
5. › Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598
1. Practice and Procedure
2. › Reasons for decision
3. › Adequacy of reasons
4. › Requirement for detailed reasons in serious injury applications
5. › Accident Compensation Act 1985 (Vic), s 134AE

Quick Take

A worker claiming serious injury under s 134AB of the Accident Compensation Act 1985 (Vic) must identify the compensable injury as referable to employment on or after 20 October 1999 and cannot change the basis of the claim on appeal from injury wholly after that date to exacerbation of a pre-existing injury. Medical opinions based on a discredited history provided by the worker will not be accepted. The distinction between Franklin v Ubaldi Foods (exacerbation case) and a case put on the basis of no pre-existing symptoms is significant for how claims should be framed.