Juma v Kone Elevators Pty Ltd

Case [2024] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0016

MUWAFAK TOMA JUMA Applicant
v
KONE ELEVATORS PTY LTD Respondent

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JUDGES:  ORR, KAYE JJA and J FORREST AJA
WHERE HELD:  Melbourne
DATE OF HEARING:  4 September 2024
DATE OF JUDGMENT:  26 September 2024
MEDIUM NEUTRAL CITATION:  [2024] VSCA 217
JUDGMENT APPEALED FROM: 
[2023] VCC 2277 (Judge Magee)

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ACCIDENT COMPENSATION – Serious injury – Applicant sustained injury to left shoulder, right shoulder and right elbow in course of employment with respondent –

Applicant sought leave to commence proceedings for pecuniary loss damages in County

Court pursuant to Workplace Injury Rehabilitation and Compensation Act 2013 – Applicant required to establish loss of earning capacity of 40 per cent or more on permanent basis – Applicant omitted full employment history and earnings from first affidavit – Applicant filed further affidavit disclosing full employment history and earnings – Judge found applicant not

a credible or reliable witness as result of omission in first affidavit and found that second

affidavit a ‘construct’ – Judge refused tender of further evidence relevant to applicant’s

credibility – Whether judge’s findings on credibility and ‘construct’ erroneous – Whether
rejection of further evidence erroneous – Leave to appeal granted – Appeal allowed.

Evidence Act 2008, ss 39, 108; Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335; Supreme Court (General Civil Procedure) Rules 2015, r 64.37.

Connelly v Transport Accident Commission [2024] VSCA 20; Fox v Percy (2003) 214 CLR 118; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Humphries v Poljak [1992] 2 VR 129; Lee v Lee (2019) 266 CLR 129; Victorian WorkCover Authority v Perumal [2024] VSCA 107; Warren v Coombes (1979) 142 CLR 531.

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Counsel

Applicant:  Mr ADB Ingram KC with Mr S Pinkstone
Respondent:  Mr SE Gladman SC with Mr JS Forrest
Solicitors 
Applicant:  PRD Legal
Respondent:  TG Legal & Technology Pty Ltd

THE COURT JA

[Insert year] VSCA 217 1
ORR JA 
KAYE JA 
J FORREST AJA: 

1          The applicant commenced a proceeding in the County Court by originating motion by which he sought leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation

and Compensation Act 2013 (the ‘Act’) to commence common law proceedings in

respect of injury to his left shoulder, right shoulder and right elbow which were alleged to have occurred on 8 January 2019 in the course of his employment by the respondent as an electrical service technician.

2          The application was heard in the County Court on 25 and 26 July 2023. At the commencement of the hearing, the respondent accepted that the pain and suffering

consequences of the applicant’s claimed injury were ‘serious’, and that he should

therefore be granted leave to commence proceedings for the recovery of pain and suffering damages. Accordingly, the issue which the primary judge was required to determine, was whether the applicant should also be granted leave to bring…

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Juma v Kone Elevators Pty Ltd [2024] VSCA 217
Case
[2024] VSCA 217
Decision Date

CaseChat Overview and Summary

In the matter of Juma v Kone Elevators Pty Ltd, the applicant sought to appeal a decision made by Judge Kossmann of the County Court, which dismissed the applicant’s application for leave to commence proceedings for pecuniary loss damages under the Workplace Injury Rehabilitation and Compensation Act 2013. The applicant, who sustained injuries to his left shoulder, right shoulder, and right elbow during his employment with the respondent, argued that he suffered a loss of earning capacity of 40 per cent or more on a permanent basis. The applicant’s initial affidavit omitted details of his full employment history and earnings, which were later disclosed in a subsequent affidavit. Judge Kossmann found the applicant not to be a credible or reliable witness due to this omission and considered the second affidavit to be a ‘construct’. The judge refused to admit further evidence relevant to the applicant’s credibility. The appeal court was required to determine whether the judge's findings on the applicant's credibility and the characterisation of the second affidavit as a ‘construct’ were erroneous, as well as whether the rejection of further evidence was also erroneous.

The appeal court examined the judge’s findings and concluded that the omission in the applicant’s first affidavit was significant enough to warrant a finding that the applicant was not a credible witness. However, the court found that the judge's characterisation of the second affidavit as a ‘construct’ and the subsequent refusal to admit further evidence was erroneous. The court held that the significance of the omitted evidence meant that the wrongful rejection of the evidence constituted a substantial wrong and a miscarriage of justice. The court found that the rejection of further evidence relevant to the applicant’s credibility was also erroneous, as it deprived the applicant of an opportunity to present a complete case. The appeal court allowed the appeal, finding that the judge's errors in handling the evidence warranted a new trial.

The court further determined that the opinions of Dr Rowe and Mr Kossmann, which were based on their examinations of the applicant, remained valid despite the lack of information about the applicant’s fulltime work between January and August 2022. The court concluded that these expert opinions supported the applicant's claim of a loss of earning capacity. As a result, the appeal court granted leave to appeal and allowed the appeal, ordering a new trial to allow the applicant to present a complete case, including the evidence that was previously rejected by the judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to the respondent’s submission that any error in the judge’s treatment of the EML letter was not a material error, r 64.37(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015 provides that, unless the Court of Appeal is of the opinion that some substantial wrong or miscarriage has been occasioned thereby in the trial, a new trial shall not be granted on the ground of the improper rejection of evidence. In the present case, in view of the significance of the EML letter to the ultimate conclusion reached by the judge, we consider that the wrongful rejection of the letter as evidence did constitute a substantial wrong, and a miscarriage of justice to the applicant. Accordingly, ground 3 of the application must also succeed. Summary of conclusions on grounds 1, 2 and 3 Counsel for the applicant further submitted that Mr Kossmann’s findings were not based on a ‘false premise’. He had the applicant’s second affidavit, as well as the report of Associate Professor Romas dated 27 January 2022, and was therefore aware of the work undertaken by the applicant. Mr Kossmann conducted his own examination of the applicant. Accordingly, it was submitted, the judge erred in rejecting the opinion of Mr Kossmann, that from an orthopaedic point of view the applicant was capable of continuing to work at 0.6 FTE but was at risk of becoming incapacitated later in his life. In response, counsel for the respondent noted that the applicant’s claim, that he was incapable of returning to fulltime work as a vocational teacher, was a central component of his application in relation to loss of earning capacity. In that regard, it was submitted that there was no evidence from any treating doctor to the effect that the applicant was limited to working part-time as a vocational teacher. Dr Rowe’s conclusion was based on his examination of the applicant, in which the applicant demonstrated a restricted range of movement of both shoulders. Adduction, abduction, flexion and extension were all ‘limited and painful’. Dr Rowe noted that the applicant had bilateral shoulder dysfunction with associated weakness and restriction, and that he was unlikely to significantly improve beyond his present level of functioning. Based on his examination of the applicant, Dr Rowe concluded that the applicant was working part-time in what appeared to be suitable employment in vocational training, albeit with some difficulty. Dr Rowe concluded that the applicant was currently working ‘at his capacity’. Again, as noted, the applicant’s evidence was that his work as a vocational teacher does involve him using his shoulders and elbows, and lifting overhead. It would appear that Dr Saxby was not apprised of that information, which would have been material to the conclusion that he expressed concerning the applicant’s work capacity. The applicant’s case was supported by the expert opinions of Dr Rowe and Mr Kossmann. Those opinions were based on their respective examinations of the applicant. For the reasons we have outlined, the fact that neither practitioner had been informed that the applicant had worked fulltime between January and August 2022 does not affect the validity of the conclusions reached by either practitioner.

Ratio Decidendi

Legal Principle Established

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