SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2012 0171 | |
| PHILLIP FOKAS | Appellant |
| v | |
| STAFF AUSTRALIA PTY LTD | Respondent |
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| JUDGES | NETTLE JA, HARGRAVE and DIXON AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 August 2013 |
| DATE OF JUDGMENT | 12 September 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 230 |
| JUDGMENT APPEALED FROM | [2012] VCC 1232 (Judge Jenkins) |
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ACCIDENT COMPENSATION – Workers compensation – Serious injury – Application for leave to bring common law proceedings – Pain and suffering consequences of injury alleged to be both physical and psychological – Whether appellant proved substantial organic basis for pain and suffering – Relevance of respondent’s admission of liability under s 104B(2) of Accident Compensation Act 1985 (‘the Act’) – Whether need to ‘disentangle’ physical contributions from psychological contributions for purposes of s 134AB(38)(h) of the Act – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201, applied – Accident Compensation Act 1985, ss 98C, 98E, 104B(2), 134AB(3), (15), (16)(b), (37) and (38)(h).
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram with Mr J Valiotis | Slater & Gordon |
| For the Respondent | Mr S A O’Meara SC with Ms M Norton | Lander & Rogers |
NETTLE JA:
In this appeal I have had the considerable advantage of reading in draft the reasons for judgment of Dixon AJA and there is little which I can usefully add.
The case is one of those difficult although hardly exceptional matters in which an applicant for leave to bring proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 relies on pain and suffering consequences which are alleged to be attributable to both physical and psychological consequences.
The difficulty exists because of the distinction which s 134AB(38)(h) of the Act demands be drawn between those consequences of a serious injury which are psychological or psychiatric and those which are not.
From time to time, this court has struggled to formulate a principled approach to the process of allocation. Unsurprisingly, our success has been limited. Given that all pain is ultimately cerebral, and in that sense psychological, who is to say which part of it is physical for the purpose of the legislation and which part is not? Any test which we may formulate is bound to be no less artificial than the distinction on which it is premised.
If I may say so with respect, the judge in this case made an admirable attempt to grapple with the difficulty. Her Honour’s consideration of the evidence and such conclusions as might be drawn from it were both detailed and, in some respects, compelling. But, according to this court’s most recent pronouncement on the subject, which it should be noted was not published until after the judge had handed down her decision, a judge ought now approach the task ‘in a two-step manner’:
… The first step is to ask whether there is a substantial…
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- Case
- [2013] VSCA 230
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the respondent's admission of liability under section 104B(2) of the Act precluded Mr. Fokas from seeking common law damages, and if so, whether such an admission effectively negated the need to separately evaluate the physical and psychological components of his pain and suffering. It was also necessary to determine whether the statutory provisions required the court to disentangle these components to comply with sections 134AB(3)(h) and (38)(h) of the Act. The court examined precedents such as Barwon Spinners Pty Ltd v Podolak, Ansett Australia Ltd v Taylor, and Meadows v Lichmore Pty Ltd to understand how previous cases had approached similar issues.
The Court of Appeal concluded that the respondent’s admission of liability did not preclude Mr. Fokas from seeking common law damages, and that it was necessary to disentangle the physical and psychological contributions to pain and suffering for the purposes of the Act. The court found that Mr. Fokas had not proven a substantial organic basis for the pain and suffering he claimed, and thus his application for leave to bring common law proceedings was dismissed. The court also ruled that the respondent's admission of liability under the Act did not automatically negate the need to assess the physical and psychological contributions separately. The decision underscored the importance of adhering to statutory requirements in determining the appropriate compensation for serious injuries under workers' compensation law.
The final orders of the Court of Appeal dismissed Mr. Fokas’s application for leave to bring common law proceedings and affirmed the lower court's decision that the appellant was not entitled to the relief sought. The court's decision highlighted the nuanced approach required in assessing claims for pain and suffering under workers' compensation legislation, particularly when both physical and psychological factors are involved.
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Evidence
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Decision
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