Delaney v VWA

Case [2025] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2024 0069
PAUL DELANEY Applicant
v
VICTORIAN WORKCOVER AUTHORITY Respondent

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JUDGES: BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD: Melbourne
DATE OF HEARING: 13 March 2025
DATE OF JUDGMENT: 4 April 2025
MEDIUM NEUTRAL CITATION: [2025] VSCA 59
JUDGMENT APPEALED FROM: [2024] VCC 797 (Judge Myers)

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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Application for leave to commence common law proceeding – Lower back injury – Whether judge erred in concluding that the consequences of the injury were not very considerable – Whether judge’s reasons did not disclose an adequate process of reasoning to demonstrate on the whole of the evidence why the applicant’s application was refused – No error made by primary judge – Application for leave to appeal refused.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(2)(c).

Juma v Kone Elevators Pty Ltd [2024] VSCA 217, applied; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, referred to.

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Counsel
Applicant: Mr ADB Ingram KC with Mr JJ Harris
Respondent: Mr MJ Hooper SC with Ms HE Daniel

Solicitors
Applicant: Maurice Blackburn Lawyers
Respondent: Injury Disputes Practice Lawyers

BEACH JA
KENNEDY JA
J FORREST AJA:

  1. Paul Delaney, the applicant, sustained an injury to his lower back in the course of his employment between October 2016 and October 2019. Mr Delaney sought leave to issue a common law claim for pain and suffering damages against his employer pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).

  2. Under s 325(2)(c) of the Act, Mr Delaney needed to demonstrate that he had sustained a ‘serious injury’. This required him to prove that the consequences of the impairment produced by the injury to his lower back were ‘more than significant or marked, and as being at least very considerable’.[1]

  3. Mr Delaney’s application was heard before Judge Myers in the County Court on 18 and 19 April 2024. In her judgment of 7 June 2024, the judge determined that Mr Delaney had not established that the permanent impairment consequences of his spinal condition met the serious injury threshold and dismissed his application.[2]

  4. Mr Delaney had argued that it was a simple case. The lower back injury (which was either an aggravation of existing lumbar spondylosis or, alternatively, a frank L5-S1 disc disruption) had effectively left him with, in the vernacular, a permanent light work back which had significant consequences for him. This, it was said, satisfied the statutory test.

  5. The respondent, the Victorian WorkCover Authority (‘VWA’) had argued that Mr Delaney’s testimony as to his level of impairment should not be accepted. It also said that his other ailments (issues with his upper back, psychological impairment and injury to his knees) meant that it was difficult, if not impossible, to identify the consequences resulting from…

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Delaney v VWA [2025] VSCA 59
Case
[2025] VSCA 59
Decision Date

CaseChat Overview and Summary

Delaney has appealed against the decision of the County Court of Victoria, which dismissed his application for leave to commence common law proceedings for damages in relation to a workplace accident that resulted in a serious injury. The primary issue for the Court of Appeal was whether the trial judge erred in concluding that the consequences of Mr Delaney’s injury were not at least very considerable, as required by section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013. The Court of Appeal was also required to determine whether the trial judge’s reasons for judgment adequately disclosed the process of reasoning used to reach the conclusion that Mr Delaney’s application was dismissed.

The Court of Appeal found that the trial judge had correctly applied the relevant legal principles and that the decision was not affected by any error of law. The Court noted that the trial judge had considered all relevant factors, including Mr Delaney’s ability to work full time and his capacity to perform personal care, domestic, and recreational activities. The Court held that the trial judge’s finding that the consequences of the injury were not at least very considerable was not erroneous, and that the reasons provided were sufficient to demonstrate the process of reasoning used to reach the conclusion. The Court of Appeal further held that the trial judge’s decision was not contrary to compelling inferences, and that there was no basis for the Court to interfere with the decision.

The Court of Appeal dismissed the appeal and refused the application for leave to appeal. The Court held that the trial judge had correctly applied the statutory threshold for a serious injury and that the reasons provided were sufficient to demonstrate the process of reasoning used to reach the conclusion. The Court of Appeal held that the trial judge’s decision was not erroneous and that there was no basis for the Court to interfere with the decision. The Court of Appeal dismissed the appeal and refused the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Then after stating she took into account both TTV SMS Pty Ltd v Reading[38] and Ellis Management Services Pty Ltd v Taylor,[39] in respect of the fourth and determinative question as to whether the impairment was serious, her Honour said this:[40]120The fact that Mr Delaney is able to work full time in suitable employment does not preclude a finding that he satisfies the statutory threshold.[41]121I bear in mind that Mr Delaney suffered his injury when aged thirty-six and will likely continue to experience symptoms for many years to come.[42]122I am required to consider what has been lost as well as what has been retained.123Mr Delaney suffers from variable but not constant pain, requiring over-the-counter medication, intermittent chiropractic treatment and massages. Mr Delaney retains the capacity to work full time in suitable employment. He can undertake all aspects of his personal care. He is able to perform lighter domestic and gardening activities. He can still drive and has been able to travel. There has been a mild impact on his recreational and social activities.Conclusion124In making the value judgment required of me, I find that whilst the impairment consequences of Mr Delaney’s spinal condition could be described as significant or marked to him, they do not reach the threshold of “at least very considerable” when compared with the range of possible impairments including those which do not come before the Court.125Mr Delaney’s application is therefore dismissed.[38]Quoting from [2020] VSCA 203, [31].[39]Quoting from [2013] VSCA 326, [35].[40]Reasons, [120]–[125] (citations in original) (emphasis added).[41]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.[42]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181, [43]–[44]. There are two grounds of appeal:1.The trial Judge erred in the application of Barwon Spinners Pty Ltd v Pololak (2005) 14 VR 622 to the whole of the evidence adduced at trial, and ought to have determined that the Applicant had established “serious injury” within the meaning of s.325(1) and (2) of the Workplace Injury Rehabilitation and Compensation Act 2013.2.The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper application of Barwon Spinners Pty Ltd v Pololak (2005) 14 VR 622 to the whole of the evidence the Applicant’s application was refused. The standard of appellate review has been set out in several recent decisions of this Court.[43][43]Connolly v Transport Accident Commission [2024] VSCA 20, [32]–[40] (Beach, Niall JJA and J Forrest AJA); Victorian WorkCover Authority v Perumal [2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA). Last year in Juma v Kone Elevators Pty Ltd, this Court said the following (which we adopt):[44]Following this Court’s decisions in Connelly v Transport Accident Commission[45] and Victorian WorkCover Authority v Perumal, on an appeal from a serious injury application brought pursuant to the Act, the applicable standard of review is the ‘correctness standard’ as explained by the High Court in Warren v Coombes. In such a case, the duty of the appellate court ‘is to decide the case — the facts as well as the law — for itself’.However, even on a review conducted on the correctness standard, where a finding is likely to have been affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their evidence, that finding should not be interfered with unless it is ‘glaringly improbable’ or ‘contrary to compelling inferences’. In respect of other findings, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts’.

Ratio Decidendi

Legal Principle Established

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