Legal Research
Cases
Lapetina v Elgee Park Pty Ltd

Lapetina v Elgee Park Pty Ltd

Case [2024] VSCA 39 19 March 2024

Type to search within this case.

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0092
LORRAINE LAPETINA	Applicant
v
ELGEE PARK PTY LTD	Respondent

---

JUDGES:	BEACH, NIALL JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF JUDGMENT:	19 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 39
JUDGMENT APPEALED FROM:	[2023] VCC 1288 (Judge Purcell)

---

ACCIDENT COMPENSATION – Workplace injury – Damages – Whether judge erred in approach to assessment of loss of earning capacity damages – No error in assessment of loss of earning capacity damages – Leave to appeal refused.

ACCIDENT COMPENSATION – Workplace injury – Whether judge gave adequate reasons for findings – Adequate reasons given – Leave to appeal refused.

ACCIDENT COMPENSATION – Workplace injury – Damages – Whether judge impermissibly influenced by general damages awards in other cases – No error in reference to other cases – Leave to appeal refused.

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, Chulcough v Holley (1968) 41 ALJR 336, CSR Ltd v Eddy (2005) 226 CLR 1, Hunter v Transport Accident Commission [2005] VSCA 1, Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, Lee v Lee (2019) 266 CLR 129, Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, Todorovic v Waller (1981) 150 CLR 402, considered.

---

Counsel
Applicant:		Mr MJ Hooper
Respondent:		Mr PH Solomon KC with Ms GJ Cooper
Solicitors
Applicant:	Zaparas Lawyers Pty Ltd
Respondent:	Wisewould Mahony

BEACH JA
NIALL JA
J FORREST AJA:

Following a trial before a judge in the County Court, the applicant obtained an award of damages for psychiatric injury arising from her employment with the respondent. In the first place, the judge assessed damages in the sum of $298,219.20, comprising components for pain and suffering, past loss of earnings and superannuation losses. This amount was subsequently reduced having regard to the receipt by the applicant of weekly payments of compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 and judgment in the sum of $150,000 was entered.
From that order the applicant seeks leave to appeal on three grounds.
In summary:
(a)Ground 1 complains that the judge erred in concluding that loss of earning capacity damages should be assessed on the basis that the applicant would have worked until 14 September 2020 but not beyond that date and with a further reduction for vicissitudes of 20 per cent.
(b)Ground 2 complains that the judge failed to give adequate reasons for making three findings, namely that the applicant would not have worked beyond 14 September 2020; that she would have had some residual capacity for alternative employment between 22 June 2017 and 14 September 2020; and that she suffered an adjustment disorder rather than a major depressive disorder.
(c)Ground 3 asserts that the assessment of pain and suffering damages was erroneous because the judge used other cases as the comparator in determining a fair and reasonable award.
The primary…

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.

Continue reading Lapetina v Elgee Park Pty Ltd

Details

AGLC: Lapetina v Elgee Park Pty Ltd [2024] VSCA 39
Case: [2024] VSCA 39
Decision Date: 19 March 2024

CaseChat Overview and Summary

In the case of Lapetina v Elgee Park Pty Ltd, the plaintiff, Lapetina, brought an action against Elgee Park, his former employer, seeking compensation for a workplace injury. The dispute centred on the quantum of damages awarded by the primary judge for loss of earning capacity. Lapetina appealed against the judgment of the Supreme Court of New South Wales, seeking to overturn the assessment of damages and the reasoning provided by the judge.

The legal issues before the court were whether the judge had erred in the approach to the assessment of loss of earning capacity damages, whether the judge gave adequate reasons for the findings made, and whether the judge was impermissibly influenced by the general damages awards in other cases. The appeal hinged on the interpretation of the authorities and the adequacy of the reasons provided by the judge in arriving at the final assessment of damages.

The court held that there was no error in the judge’s assessment of loss of earning capacity damages. The judge had correctly applied the relevant principles and authorities in evaluating the plaintiff's earning capacity. The court also found that the reasons provided by the judge were adequate and that there was no evidence of impermissible influence from other cases. Consequently, the appeal was dismissed, and leave to appeal to a higher court was refused.

The final orders of the court affirmed the judgment of the primary judge and dismissed the appeal in its entirety.

Orders