VICTORIAN WORKCOVER AUTHORITY and BENDIGO ACCESS EMPLOYMENT INC
Respondents
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JUDGES:
MAXWELL P, NETTLE JA and EMERTON AJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
29 April 2010
DATE OF JUDGMENT:
25 June 2010
MEDIUM NEUTRAL CITATION:
[2010] VSCA 164
JUDGMENT APPEALED FROM:
Guppy v VWA and Bendigo Access Employment Inc (Unreported, County Court of Victoria, Judge Campbell, 28 November 2008)
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ACCIDENT COMPENSATION – Appeal – ‘Serious injury’ – Application for leave to commence proceedings for damages – Aggravation of existing injury – Whether consequences of aggravation sufficient to constitute serious injury – Loss of earning capacity consequences – Whether 40 per cent loss of earning capacity – Calculation of pre- and post-injury earning capacity – Working capacity already reduced by first injury – Whether additional consequences ‘very considerable’ – Petkovski v Galletti [1994] 1 VR 436 applied – Accident Compensation Act 1985 (Vic) ss 134AB(37)–(38), 134AD.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T P Tobin SC with Mr D J N Purcell
Arnold Dallas McPherson
For the Respondents
Mr M F Wheelahan SC with Mr J P Gorton
Lander & Rogers
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Emerton AJA. For the reasons which her Honour gives, I too would allow the appeal and give the appellant leave to bring proceedings in respect of the second injury.
NETTLE JA:
I agree with Emerton AJA.
EMERTON AJA:
The appellant, Mr Guppy, is a 36 year old man from regional Victoria who is married with a young family. Throughout his working life, which commenced when he left school at the age of 16, he has undertaken manual labour of one kind or another.
In circumstances that will be described more fully in the course of this judgment, Mr Guppy injured his back on 21 May 2001 whilst in the employ of Malcolm McClure Pty Ltd (‘McClures’), an earthmoving and road construction firm. He was off work for approximately three weeks, returned to work on light duties, but continued to experience pain in his back. On medical advice, he ceased work and left McClures in September 2001.
In early 2004, Mr Guppy approached Bendigo Access Employment Inc (‘Access’) in the hope that Access would assist him to find suitable employment, given his physical limitations. Access is a job network agency specialising in assisting disabled people to return to or find work. In April 2004, Mr Guppy commenced work on a part‑time basis for Access. On 19 August 2005, he suffered a further injury, which was an aggravation of the earlier injury, in the course of his employment with Access. After a short time off work, he returned to work at Access. His employment with Access came to an end in 2007 and he has not worked
since.
In November 2008, a judge of the County Court of Victoria heard applications brought by Mr Guppy…
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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AGLC
Guppy v Victorian WorkCover Authority [2010] VSCA 164
Case
[2010] VSCA 164
Decision Date
CaseChat Overview and Summary
Guppy v Victorian WorkCover Authority involved the appellant, Mr Guppy, appealing against a decision of the WorkCover Authority of Victoria that he did not suffer a serious injury within the meaning of the Accident Compensation Act 1985 (Vic). The appeal centred on whether the aggravation of his pre-existing injury constituted a serious injury under the Act and whether this aggravation led to a 40 per cent loss of earning capacity.
The central legal issues revolved around the interpretation and application of the definition of 'serious injury' as provided in sections 134AB(37)-(38) and 134AD of the Act. Specifically, the court had to determine if the consequences of the aggravation of Mr Guppy's injury were 'very considerable', and whether his post-injury earning capacity had decreased by 40 per cent. The court also needed to consider the impact of Mr Guppy's pre-existing injury on the assessment of his post-injury working capacity.
The court examined the facts and concluded that the consequences of the aggravation of Mr Guppy's injury were indeed 'very considerable', particularly in light of his already reduced working capacity due to the initial injury. The court referenced Petkovski v Galletti to ascertain the threshold for what constitutes a'serious injury' and found that the additional consequences of the aggravation met this threshold. The court also confirmed that Mr Guppy's loss of earning capacity was 40 per cent, taking into account the pre-existing injury. The reasoning was that the pre-existing injury had already limited his earning capacity, and the aggravation further reduced it by 40 per cent overall.
As a result, the court granted Mr Guppy leave to commence proceedings for damages. The appeal was thus allowed, and the decision of the WorkCover Authority was set aside.