ACCIDENT COMPENSATION – Appeal from refusal of application for leave to commence proceedings to recover pecuniary loss damages – Factual issues raised below regarding ‘suitable employment’ and permanency of loss of earning capacity – Whether reasons of primary judge adequate – Reasons not adequate – Leave to appeal granted and appeal allowed – Remitted to County Court – Accident Compensation Act 1985 ss 5, 134AB(16)(b), (19), (37), (38)(b), (c), (e), (f), (g)
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APPEARANCES:
Counsel
Solicitors
For the Applicant
J. Mighell QC with S. Jurica
Zaparas Lawyers
For the Respondent
M.F. Wheelahan QC with S.E. Gladman
Thomson Geer Lawyers
WARREN CJ CAVANOUGH AJA:
Overview
This is an application for leave to appeal, and, if leave be granted, an appeal from a judgment given in the County Court.[1]
The matter before the County Court judge was an application by Mr Brian Harris under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for leave to bring common law proceedings in respect of an employment-related back injury, being an application made on the basis that the back injury amounted to ‘serious injury’ within paragraph (a) of the definition of that term in s 134AB(37) of the Act (‘permanent serious impairment or loss of a body function’). Mr Harris had sought leave to bring proceedings for both ‘pain and suffering damages’ and ‘pecuniary loss damages’ as those terms are defined in s 134AB(37). By his order the judge, in effect, granted leave to Mr Harris to issue proceedings at common law for pain and suffering damages but refused his application insofar as he sought leave to proceed for pecuniary loss damages.
Mr Harris’ application to this Court for leave to appeal was refined at the hearing, such that it now relies on a single ground. In effect, the ground is that the judge did not provide an adequate statement of reasons for refusing Mr Harris leave to proceed for pecuniary loss damages.[2]
In our view, this ground is a good one. It is not sufficiently clear, from the judge’s written reasons or otherwise, why Mr Harris’ application for leave to proceed for pecuniary loss damages was unsuccessful. Leave to appeal should be granted; the appeal should be allowed; the judge’s order should be set aside…
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
AGLC
Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Case
[2016] VSCA 188
Decision Date
CaseChat Overview and Summary
The case of Harris v DJD Earthmoving Pty Ltd involves an appeal from the refusal of an application for leave to commence proceedings to recover pecuniary loss damages. The dispute arose following an accident compensation claim, and the primary judge had declined to grant leave to commence proceedings. The appeal was brought before the court to determine whether the reasons provided by the primary judge were adequate. The applicant, Harris, sought compensation for pecuniary loss damages, arguing that the primary judge’s reasons did not adequately address the factual issues surrounding the suitability of employment and the permanency of the loss of earning capacity.
The court was tasked with determining whether the reasons provided by the primary judge were sufficient to justify the refusal of leave to commence proceedings. Specifically, the court had to examine if the reasons addressed the key issues of whether suitable employment was offered to Harris and whether the loss of earning capacity was permanent. The adequacy of the reasons was scrutinized to ensure that all relevant factors were considered and appropriately weighed in the decision-making process.
The court found that the reasons provided by the primary judge were not adequate. The reasoning did not sufficiently address the factual issues regarding the suitability of employment and the permanency of the loss of earning capacity. The court held that the reasons were insufficient to justify the refusal of leave to commence proceedings. Consequently, the leave to appeal was granted, and the appeal was allowed. The matter was remitted to the County Court to be reconsidered in light of the court's findings regarding the inadequacy of the reasons. The court emphasized the need for a thorough examination of all relevant factors in future proceedings to ensure a fair and just outcome.