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Hawkins v DHL Express (Australia) Pty Ltd

Hawkins v DHL Express (Australia) Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0126

JOHN HAWKINS	Appellant
	v
DHL EXPRESS (AUSTRALIA) PTY LTD (ACN 001 112 929)	Respondent

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JUDGES	REDLICH and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 August 2012
DATE OF JUDGMENT	20 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 26
JUDGMENT APPEALED FROM	John Hawkins v DHL Express (Australia) Pty Ltd (formerly DHL International (Aust) Pty Ltd) [2011] VCC 1182

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ACCIDENT COMPENSATION – Accident Compensation Act 1985, s 134AB(16)(b) – Common law damages – Whether workplace injury had serious injury consequences – Whether judge erred in regarding failure to take medication or continue with treatment as evidence that pain and suffering consequences were less than very considerable – Whether judge erred in treating worker’s advanced age as supportive of proposition that injury not serious – No vitiating error – Appeal dismissed. Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, applied. Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, considered.

ACCIDENT COMPENSATION – Test to be applied to the appeal – Section 134AD Accident Compensation Act 1985 repealed – Judge’s determination of serious injury only set aside for specific error or if plainly wrong or wholly erroneous – Mobilio v Balliotis [1998] 3 VR 833, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D F Hore-Lacy SC and Mr G Chancellor	Rose Mary Brondolino & Co
For the Respondent	Mr S A O’Meara SC and Ms R L Kaye	Herbert Geer

REDLICH JA:

I will ask Justice Tate to deliver the first judgment.

TATE JA:

Introduction

The appellant, Mr John Hawkins, (‘the worker’) appeals against orders made by a judge of the County Court dismissing his application for leave, brought under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to bring common law proceedings for pain and suffering damages in respect of a claimed neck and right shoulder injury caused by his employment with the respondent, DHL Express (Australia) Pty Ltd (‘the employer’).[1] Leave was refused on the ground that the injury was not a ‘serious injury’ within the statutory definition.
[1]Hawkins v DHL Express (Australia) Pty Ltd (Unreported, County Court of Victoria, Judge K L Bourke, 12 August 2011) (‘Reasons’). There was no dispute that the worker’s employment with the employer had caused the injury alleged.

The worker relied on paragraph (a) of the definition of ‘serious injury’ to be found in s 134AB(37) of the Act, which refers to a ‘permanent serious impairment or loss of a body function’. The body function relied upon was the cervical spine and the right shoulder. The judge found that the impairment did not have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, could be fairly described at the date of the hearing as being ‘more than significant or marked, and … at least…

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 26
Decision Date: 20 February 2013

CaseChat Overview and Summary

Hawkins brought an appeal against the decision of DHL Express (Australia) Pty Ltd in the Supreme Court of Victoria, challenging the quantum of damages awarded for a workplace injury under the Accident Compensation Act 1985. The central issue was whether the judge had erred in determining that the pain and suffering resulting from the injury were not of a very considerable degree, given Hawkins' failure to take prescribed medication or continue with recommended treatment. Additionally, the court considered whether the judge's view that Hawkins' advanced age supported the conclusion that the injury was not serious was appropriate.

The court examined the legal principles governing appeals under the Accident Compensation Act 1985, particularly in light of the repealed section 134AD, which previously allowed for broader grounds of appeal. The court held that an appellate court could only set aside the primary judge's determination if there was a specific error, or if the decision was plainly wrong or wholly erroneous. The court found that the primary judge's consideration of Hawkins' failure to take medication or continue treatment did not constitute a specific error and was not plainly wrong. The judge's reference to Hawkins' advanced age was also found not to be inappropriate, as it was part of a broader consideration of the injury's impact.

In conclusion, the court dismissed the appeal, finding no vitiation of the process or error in the judge's determination. The primary judge's assessment of the pain and suffering consequences was upheld, and the quantum of damages awarded remained unchanged. The court's decision underscored the limited scope of appellate review in cases under the Accident Compensation Act 1985.

Orders