De Bono v Victorian Workcover Authority - [2019] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0102

BRYAN PHILLIP DE BONO	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	PRIEST, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2019
DATE OF JUDGMENT:	12 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 85
JUDGMENT APPEALED FROM:	[2018] VCC 997 (Judge Misso)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury application – Loss of earning capacity – Whether loss of earning capacity consequences were at least very considerable – Whether worker suffered permanent loss of earning capacity of 40 per cent or more – Relevance of failure to undertake rehabilitation or retraining – Judge’s reasons – Whether judge’s reasons inadequate – Reasons inadequate – Appeal allowed – Matter remitted for rehearing – Accident Compensation Act 1985, ss 134AB(16)(b), (17) and 38(e)-(g).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D Clements QC with Mr C A Sidebottom	Hounslow Lawyers
For the Respondent	Mr S A O’Meara QC with Mr R Kumar	Minter Ellison

PRIEST JA

BEACH JA
McLEISH JA:

On 12 May 2011, the applicant suffered an injury to his lower back as a result of lifting a 25 kilogram bag of salt in the course of his employment.

By an originating motion filed in the County Court on 15 January 2018, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages in respect of his lower back injury. The applicant relied upon paragraph (a) of the definition of serious injury in s 134AB(37) of the Act — namely, ‘permanent serious impairment or loss of a body function’.

The application was heard by Judge Misso on 15 June 2018. At the hearing, the respondent conceded that the applicant had suffered a compensable injury to his lower back and that the pain and suffering consequences of the impairment of function of his lower back were serious. The issue before the judge was whether the loss of earning capacity consequences were serious, and whether the applicant should thus be given leave to commence common law proceedings for pecuniary loss damages in addition to pain and suffering damages.

On 29 June 2018, the judge delivered reasons for judgment[1] rejecting the applicant’s application to commence a common law proceeding claiming pecuniary loss damages. On 1 August 2018, the judge made an order granting the applicant leave to bring a common law proceeding to recover damages for pain and suffering only.
[1]De Bono v Victorian WorkCover Authority [2018] VCC 997 (‘Reasons’).

The applicant now seeks leave to appeal against the judge’s order refusing him leave to commence a proceeding claiming pecuniary loss damages. The applicant’s proposed grounds of appeal are as follows:

1.The judge erred in law in failing to disclose a path of reasoning to support his finding that notwithstanding his Honour accepted that the applicant had an intolerance to driving sufficient to preclude him from being an…

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: [2019] VSCA 85
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the case of De Bono v Victorian Workcover Authority, the appellant, Mr De Bono, sought to appeal a decision by the WorkCover Authority of Victoria, which had rejected his claim for compensation under the Accident Compensation Act 1985. The primary issue in dispute was whether Mr De Bono had suffered a serious injury that resulted in a permanent loss of earning capacity of at least 40 per cent. The Court of Appeal was tasked with determining the adequacy of the judge's reasons and whether the decision-making process complied with the statutory requirements.

The legal issues before the court involved the interpretation and application of sections 134AB(16)(b), (17) and 38(e)-(g) of the Accident Compensation Act 1985. The court had to consider whether the judge's reasoning was sufficient to justify the decision and whether the failure to undertake rehabilitation or retraining was appropriately considered in determining the extent of Mr De Bono's loss of earning capacity. The court also examined the statutory criteria for a serious injury and whether these had been correctly applied in the context of the facts of the case.

The court found that the judge's reasons were inadequate as they did not sufficiently address the statutory criteria for a serious injury or the specific circumstances of Mr De Bono's case. The appeal was allowed, and the matter was remitted for rehearing. The court held that the failure to provide adequate reasons for the decision rendered the outcome unjust and necessitated a rehearing to ensure all relevant factors were properly considered. The court emphasised the importance of clear and detailed reasoning in serious injury applications to uphold the integrity of the compensation process.

The final orders of the court included allowing the appeal, setting aside the decision of the WorkCover Authority, and remitting the matter for rehearing in accordance with the statutory provisions and the findings of the Court of Appeal.

Orders