Lakic v Woolworths Group Ltd
[2023] VSCA 79
•5 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0006 |
| ALEKSANDAR LAKIC | Applicant |
| v | |
| WOOLWORTHS GROUP LTD | Respondent |
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| JUDGES: | BEACH and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 5 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 79 |
| JUDGMENT APPEALED FROM: | [2022] VCC 2234 (Judge English) |
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PRACTICE AND PROCEDURE – Appeal – Plaintiff’s application under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 refused by primary judge – Respondent accepting that primary judge erred and that matter should be remitted for rehearing by different judge – Error in judge misreading medical report tendered on original application – Appropriate for consent orders to be made allowing the appeal, setting aside judge’s orders and remitting application to differently constituted court.
Hennes v Hobsons Bay City Council [2012] VSCA 215 applied.
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| Counsel | |||
| Applicant: | Mr J Mighell KC with Ms K Popova | ||
| Respondent: | Not applicable | ||
Solicitors | |||
| Applicant: | Zaparas Lawyers | ||
| Respondent: | Hall and Wilcox | ||
BEACH JA
KAYE JA:
On 20 December 2018, Aleksandar Lakic (the plaintiff) suffered an injury to his lower back while lifting a box in the course of his employment with Woolworths Group Ltd (the defendant). He subsequently filed an originating motion in the County Court seeking leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’), to commence a proceeding at common law claiming damages in respect of his lower back injury. He relied upon paragraph (a) of the definition of ‘serious injury’ contained in s 325(1) of the Act — namely, ‘permanent serious impairment or loss of a body function’.
The plaintiff’s proceeding was heard in the County Court on 24 November 2022. The plaintiff was the only witness called to give viva voce evidence. Medical evidence was tendered in the form of medical reports prepared by treating practitioners and medico-legal experts. Amongst the issues in dispute before the primary judge was whether there was a substantial organic basis for the plaintiff’s alleged impairment and its consequences.[1]
[1]As to the significance of that issue in a proceeding such as the plaintiff’s, see Victorian WorkCover Authority v Nguyen [2016] VSCA 284, [26].
On 15 December 2022, the primary judge delivered reasons in which she dismissed the plaintiff’s application.[2] The following day (16 December 2022), the judge made orders dismissing the proceeding and requiring the plaintiff to pay the defendant’s costs of the proceeding.
[2]Lakic v Woolworths Group Ltd [2022] VCC 2234, [133] (‘Reasons’).
The plaintiff seeks leave to appeal on three proposed grounds of appeal. In his first proposed ground of appeal, he contends that the primary judge ‘erred in finding that there was no substantial organic basis for [the plaintiff’s] pain and suffering consequences because the finding was based on [a mistake] of fact … that the opinion of Dr Aliashkevich was the same as the opinion of Dr Lyon’.
The defendant accepts that the judge made the error alleged by the plaintiff, and has filed a notice of intention not to contest the plaintiff’s application for leave to appeal on the basis that the following consent orders should be made:
1.The [plaintiff] be granted leave to appeal.
2.The appeal be allowed.
3.The orders of her Honour Judge English made on 16 December 2022 in County Court Proceeding Numbered CI-2022-01248, to be set aside.
4.The matter be remitted to the County Court, to be determined by a different judge, with the costs of the hearing on 24 November 2022 to be costs in the cause.
5.The [defendant] to pay the [plaintiff’s] costs of the appeal, on a standard basis, to be assessed by the Costs Court in default of agreement.
In support of the proposed consent orders, the parties filed a joint memorandum signed by their solicitors. Even though the orders now sought are sought by consent, as has been said before, they cannot be made unless this Court is satisfied that the judgment under challenge, and the orders made pursuant to it, are wrong — or at least sufficiently problematic to warrant them being set aside and a new trial ordered.[3] As this Court pointed out in Newton v Geelong Ethnic Communities Council Inc,[4] the Court must:
be affirmatively satisfied that the proceeding should be remitted to the County Court for rehearing. Any such disposition by this Court has resource implications for the administration of justice … and involves costs to the community. In addition, it is desirable, in the interests of justice, that if the matter is to be reheard, any error made at first instance is not replicated.[5]
[3]Hennes v Hobsons Bay City Council [2012] VSCA 215, [7].
[4][2011] VSCA 59.
[5]Ibid, [17].
Having read the material for ourselves, together with the parties’ joint memorandum, we are satisfied that the proposed consent orders should be made, and that the plaintiff’s application should be remitted for rehearing before a different judge.
The opinions of Dr Aliashkevich and Mr Lyon[6] were not the same. The judge’s conclusion that the opinions were the same[7] involved a misreading of Dr Aliashkevich’s report dated 29 May 2019. The confusion was caused because Dr Aliashkevich set out in some detail the opinion of Mr Lyon, contained in Mr Lyon’s report of 8 March 2019, before going on to express a different opinion — and one which was considerably more favourable to the plaintiff on the issue of whether there was a substantial organic basis for his alleged impairment and its consequences.
[6]Wrongly referred to as Dr Lyon in the plaintiff’s proposed grounds of appeal.
[7]Reasons, [46]-[48], [93], [117]-[119].
It follows that the consent orders sought by the parties, which will result in the remission of this proceeding to a differently constituted court, should be made. The defendant is to be commended for taking the sensible approach it has taken in this Court in agreeing to the making of the proposed consent orders.
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