Hopitea v CSR Ltd

[2014] VSC 144

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2013 1993

VASILE HOPITEA	Appellant
v
CSR LIMITED	Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	3 April 2014
CASE MAY BE CITED AS:	Hopitea v CSR Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 144

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The parties filed a Joint Memorandum pursuant to Paragraph 6.3 of Practice Note No.4 of 2009 in the Judicial Review and Appeals List.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Ingram	Shine Lawyers
For the Respondent	Mr R Gorton QC	Sparke Helmore Lawyers

HER HONOUR:

1. The appellant has brought an appeal from a judgment in the Magistrates’ Court of Victoria exercising its WorkCover jurisdiction.  Pursuant to the Accident Compensation Act 1985 (the ‘Act’), the appellant made application for compensation for injuries resulting from a fall. His claim for weekly payments and medical and like expenses was initially accepted and then terminated on the basis that his injury was no longer related to his employment. He sought a resumption of compensation benefits.

1. The proceeding was heard in the Magistrates’ Court over seven days. The Magistrate concluded that on the evidence before him, he was unable to find that the appellant’s employment with the respondent contributed to his major pre-existing and previously symptomatic low back degenerative changes. 

1. However, reports of two medico-legal psychiatrists were received into evidence, one on behalf of the appellant and one on behalf of the respondent.  There was little difference between their opinions.  The Magistrate accepted the evidence from both psychiatrists that as a result of the flare-up of symptoms, the appellant had ‘no current work capacity’ after he stopped work in June 2011. 

1. Having found that the injury was a ‘temporary aggravation of previously symptomatic degenerative disease to the low back, with adjustment disorder and depression’, the Magistrate concluded that the appellant was entitled to compensation until the day before he had surgery on 18 November 2011, but not thereafter.

1. The parties have prepared a joint memorandum in accordance with Practice Note No.4 of 2009 in the Judicial Review and Appeals List.  They agree that:

(a)Having found that:

(i)as a result of the flare-up of symptoms following the fall, the appellant suffered a compensable psychiatric injury;

(ii)as a result of the psychiatric injury, he had no current work capacity after June 2011;  and

(iii)that incapacity continued to the day before spinal surgery;

(b)there was no evidence before the Court that demonstrated any change in that condition on or after that date;  and

(c)nor was there any evidence of the breaking of the nexus between the psychiatric condition and its cause by the flare-up as a consequence of the fall;

there was no basis disclosed by the reasons of the learned Magistrate to warrant a finding that the compensability of the psychiatric injury ceased on the day before the surgery.

1. The parties submit that this approach is consistent with the approach taken by the Court of Appeal in Wingfoot Australia Partner Pty Ltd & Anor v Jovevski.[1]

   [1][2014] VSCA 21.

1. Accordingly, the parties seek an order that the appeal be allowed and the matter be remitted to the Magistrates’ Court for re-hearing.

1. The parties have indicated that they have used the opportunity of the appeal to resolve all matters between them, including the Magistrates’ Court proceeding and any further proceeding seeking a serious injury determination pursuant to s 134AB of the Act and any award of common law damages. Thus, whilst the proceeding is to be formally remitted to the Magistrates’ Court, there will be no further hearing and the proceeding will be dismissed by consent in the Magistrates’ Court.

1. On the basis of these matters, the Court will order that the appeal be allowed and the matter remitted to the Magistrates’ Court of Victoria for re-hearing.