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Fokas v Staff Australia Pty Ltd

Fokas v Staff Australia Pty Ltd

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Case Copied 12 September 2013 26 min read

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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…

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: [2013] VSCA 230
Decision Date: 12 September 2013

CaseChat Overview and Summary

In Fokas v Staff Australia Pty Ltd, the appellant, Mr. Fokas, sought leave to bring common law proceedings against his former employer, Staff Australia Pty Ltd, for damages relating to a serious injury he sustained while employed. The primary dispute centred on the nature and extent of the compensation Mr. Fokas was entitled to under the Accident Compensation Act 1985, particularly regarding the pain and suffering he experienced post-injury, which he claimed had both physical and psychological components. The Court of Appeal was tasked with determining whether Mr. Fokas had established a substantial organic basis for the pain and suffering he alleged, and whether the contributions from physical and psychological factors could be disentangled for the purpose of calculating compensation under the Act.

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.

Orders