Lakic v Woolworths Group Ltd - [2023] VSCA 79

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…

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: [2023] VSCA 79
Decision Date: 5 April 2023

CaseChat Overview and Summary

Lakic, a former employee of Woolworths Group Ltd, sought an appeal against the refusal of his application under section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013. The case was heard in the Supreme Court of Victoria. The primary judge had dismissed the application, but Woolworths subsequently accepted that the judge had erred in misreading a medical report that was part of the original application. As a result, the case was brought before the court to consider the appropriate course of action.

The legal issues before the court involved whether the error in the misreading of the medical report was significant enough to warrant the appeal being allowed and the application being remitted for a rehearing by a different judge. The respondent conceded that the primary judge had indeed misread the medical report and that the matter should be remitted for a rehearing by a differently constituted court.

In considering these issues, the court noted that the error in the misreading of the medical report was substantial, as it impacted the decision-making process. The court agreed that the primary judge’s error warranted the appeal being allowed and that the application should be remitted for rehearing by a different judge. The court referenced the decision in Hennes v Hobsons Bay City Council [2012] VSCA 215, which held that where a judge has made a significant error, it is appropriate to remit the matter for rehearing by a differently constituted court.

The court made consent orders allowing the appeal, setting aside the orders of the primary judge, and remitting the application to a differently constituted court for rehearing. This decision ensures that the appeal process is fair and that the parties have the opportunity to present their case to a fresh tribunal, free from the influence of any potential bias or error in the original hearing.

Orders