Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop

The case of Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop involved the appellants seeking to appeal the grant of leave to the respondent, Jessop, to bring a common law proceeding for serious injury compensation. The dispute centred around the respondent's entitlement to compensation for a cervical spine injury sustained during employment. The Victorian Court of Appeal was tasked with deciding the appeal.

The central legal issue was whether the trial judge erred in assessing the respondent's pre-injury earning capacity under section 134AB(38)(f)(ii) of the Accident Compensation Act 1985. Specifically, the court had to determine if the respondent's availability for work and the actual hours worked at his pre-injury employment were the appropriate criteria for assessing earning capacity. The appellants argued that the respondent's limited hours of work prior to the injury should be the basis for determining earning capacity, while the respondent contended that his physical and mental capacity, as well as his willingness to work longer hours, should be considered.

The Court of Appeal found that the trial judge correctly assessed the respondent's pre-injury earning capacity. The court held that the respondent's demonstrated capacity, willingness, and actual work hours prior to the injury were relevant factors. Furthermore, the court accepted that the respondent's earning capacity had decreased by 40 per cent or more after the injury. Consequently, the appeal was dismissed, upholding the trial judge's decision that the respondent was entitled to bring a common law proceeding for serious injury compensation.

No further orders were made by the court.