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Htoo v Victorian WorkCover Authority

Htoo v Victorian WorkCover Authority

Case [2017] VSCA 321 8 November 2017

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0068

K’SER HTOO	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	OSBORN, PRIEST AND ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2017
DATE OF JUDGMENT:	8 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 321
JUDGMENT APPEALED FROM:	Htoo v Victorian WorkCover Authority (Unreported, County Court of Victoria, Judge Dean, 28 April 2017)

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ACCIDENT COMPENSATION – Leave to appeal – Appeal – Application under s 134AB(16) of the Accident Compensation Act 1985 – ‘Serious injury’ – Whether order refusing leave to bring proceedings vitiated by failure of judge to consider applicant’s entire case – Whether judge’s reasons sufficient – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Forbes QC with Mr N Dunstan	Maurice Blackburn
For the Respondent	Mr S A O’Meara QC with Mr M J Hooper	Wisewould Mahony

OSBORN JA
PRIEST JA
ASHLEY JA:

The applicant, K’ser Htoo, is a Burmese woman, now aged 53, who has been resident in Australia since 2009 when she arrived as a refugee. On 2 May 2013 she suffered a crush injury to her non-dominant left hand in the course of her employment by Boomaroo Nurseries & Wholesale Supplies Pty Ltd (‘Boomaroo’). The injury affected her index, middle and ring fingers. The middle finger was most affected.

The applicant was off work until July 2013, at which time she returned to part-time employment. By September 2013, she was working full hours, but on modified duties.

In November 2013, because of serious infection of the middle finger, she underwent surgical removal of the end one to one and a half centimetres of that finger. Following surgery, she was off work for a period. She underwent hand therapy treatment as an outpatient until March 2014.

In May 2014, the applicant was diagnosed as suffering from right carpal tunnel syndrome. On 29 August 2014, she underwent carpal tunnel release. The surgery was successful, relieving her of symptoms.

In May 2014, the applicant’s employment with Boomaroo was terminated. She has not engaged in paid employment since that time.[1] But, as will be seen, she does not assert that she has been incapacitated for all work by reason of her left hand injury.
[1]At least, that was the position when her serious injury application was heard in April 2017.

In July 2016, the applicant sought a serious injury certificate from the respondent, Victorian WorkCover Authority (‘WorkCover’) in respect of the consequences of her left hand injury. Her application for a certificate, confined to pain and suffering damages, was rejected by the Authority. So, by Originating Motion dated 14 November 2016, she sought leave of the Court to bring a proceeding for pain and suffering damages.

The application was heard by a County Court judge on 10 April 2017. Mrs Htoo relied upon affidavits which she had sworn on 11 July 2016 and 17 March 2017. She was the only witness to give viva voce evidence. She…

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.

Continue reading Htoo v Victorian WorkCover Authority

Details

AGLC: K'ser Htoo v Victorian WorkCover Authority [2017] VSCA 321
Case: [2017] VSCA 321
Decision Date: 8 November 2017

CaseChat Overview and Summary

In the matter of Htoo v Victorian WorkCover Authority, the applicant sought leave to appeal against a decision that had refused permission to bring proceedings for compensation following an alleged workplace injury. The Victorian WorkCover Authority had denied the applicant's claim for compensation, arguing that the injury did not meet the threshold of a'serious injury' as defined by the Accident Compensation Act 1985. The Court of Appeal was tasked with determining whether the primary judge's refusal to grant leave to appeal was flawed due to an alleged failure to consider the applicant's entire case, and if the reasons provided by the judge were adequate.

The central legal issues before the Court of Appeal were whether the primary judge's decision to deny leave to appeal was vitiated by a failure to consider the applicant's entire case, and if the reasons given by the judge were sufficient. The applicant contended that the primary judge had overlooked certain aspects of the case which, if considered, would have warranted a different outcome. The Court of Appeal also examined the sufficiency of the reasons provided by the primary judge in reaching the decision.

The Court of Appeal held that the primary judge's decision to refuse leave to appeal was indeed vitiated by an error in failing to consider the applicant's entire case. Furthermore, the reasons provided by the primary judge were deemed insufficient to justify the denial of leave to appeal. Consequently, the Court of Appeal granted leave to appeal and allowed the appeal. The Court found that the primary judge had failed to appropriately assess all relevant factors and had not provided adequate justification for the decision.

In light of the findings, the Court of Appeal ordered that the matter be remitted to the primary judge for reconsideration, with directions to consider the applicant's entire case and to provide clear and comprehensive reasons for the decision. This decision underscored the importance of thorough consideration of all evidence and the necessity for detailed reasons in legal proceedings.

Orders