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Kesper v Victorian WorkCover Authority

Kesper v Victorian WorkCover Authority

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Case Copied 15 October 2024 59 min read

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2024 0001
RICHARD KESPER	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	ORR, KAYE JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2024
DATE OF JUDGMENT:	15 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 237
JUDGMENT APPEALED FROM:	[2023] VCC 2057 (Judge Ginnane)

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WORKERS’ COMPENSATION – Appeal – Applicant sought leave to bring proceedings for recovery of damages for serious injury – Judge refused leave because pain and suffering caused by neck injury was not ‘very considerable’ – Applicant contends judge should have granted leave – Standard of appellate review – Respondent contends appellate court should afford ‘deference’ to primary judge – No deference warranted – Appeal allowed.

WORKERS’ COMPENSATION – Appeal – Applicant contends judge erred by finding pain and suffering consequences did not ‘dominate’ plaintiff’s life – Applicant contends judge erred by applying a test whereby cases in the ‘middle of the range’ should be dismissed – Applicant contends judge gave inadequate reasons – No error – Reasons comprehensive.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335.

Connelly v Transport Accident Commission [2024] VSCA 20; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries v Poljak [1992] 2 VR 129; Lee v Lee (2019) 266 CLR 129; Hamidi v Transport Accident Commission (2023) 104 MVR 282; Warren v Coombes (1979) 142 CLR 531; Victorian WorkCover Authority v Perumal [2024] VSCA 107.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr LA Howe
Respondent:		Mr PH Solomon KC with Mr JS Forrest
Solicitors
Applicant:	Arnold Thomas & Becker
Respondent:	Injury Disputes Practice Lawyers

ORR JA
J FORREST AJA:

Introduction

Richard Kesper is now 61 years of age and between 2006 and January 2021 was employed at Eastern Health as an operating theatre technician. In 2017, he developed a serious neck condition which ultimately required a discectomy and fusion at two levels of his cervical spine. This condition was attributed to his work. He experienced back problems at work in 2020 and then in July 2021 sustained a further injury to his lower back — also at work, which resulted in him ceasing employment.
In a proceeding in the County Court, Mr Kesper sought leave to bring a common law claim against Eastern Health, contending that he had sustained a serious injury to his cervical spine arising out of his employment. Accordingly, he applied to the County Court for leave to bring a claim for pain and suffering damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’).
His application was heard in June 2023. The County Court judge, his Honour Judge Ginnane, was not satisfied that Mr Kesper had sustained a serious injury within the meaning of the WIRC Act. Mr Kesper now seeks leave to appeal that determination.
Notwithstanding his Honour’s thorough assessment of the evidence and application of the law, we are of…

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.

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Details

Case: [2024] VSCA 237
Decision Date: 15 October 2024

CaseChat Overview and Summary

In the case of Kesper v Victorian WorkCover Authority, the applicant sought leave to bring proceedings for the recovery of damages for a serious injury sustained in the course of employment. The primary judge denied the application, ruling that the pain and suffering caused by the applicant’s neck injury was not 'very considerable'. The applicant appealed this decision, arguing that the judge should have granted leave to the proceedings. The legal issues in this appeal included the standard of appellate review and whether the primary judge had correctly applied the relevant legal principles in determining the severity of the pain and suffering.

The applicant argued that the primary judge should have afforded greater weight to the evidence of the pain and suffering, which they claimed dominated their life. They also contended that the judge had misapplied the legal test by dismissing cases that fell in the 'middle of the range'. The respondent, on the other hand, argued that the appellate court should give deference to the primary judge’s assessment of the evidence and the application of the law. The court found that no such deference was warranted in this instance, as the judge had not provided comprehensive reasons for their findings. The court held that the reasons provided were sufficient to justify the decision, and that the applicant had not demonstrated that the judge had made an error in their assessment of the pain and suffering.

Upon reviewing the evidence and the reasons given by the primary judge, the court concluded that there was no error in the primary judge's assessment. The court found that the reasons provided were comprehensive and appropriately considered the evidence presented. Therefore, the appeal was dismissed, and the primary judge’s decision was upheld. The final orders of the court confirmed that the application for leave to bring proceedings for the recovery of damages was to be dismissed.

Orders