Juma v Kone Elevators Pty Ltd

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.