SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0074
| TAVIS MARGRIPLIS-HAMPTON | Applicant |
| v | |
| SPENDWATT PTY LTD | Respondent |
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| JUDGES: | BEACH, NIALL JJA and GORTON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 February 2022 |
| DATE OF JUDGMENT: | 22 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 15 |
| JUDGMENT APPEALED FROM: | [2021] VCC 707 (Judge Pillay) |
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ACCIDENT COMPENSATION – Workplace Injury – Worker under 26 when injured – Worker had to establish lost earning capacity of 40 per cent or more – Whether worker’s case required impermissible speculation – Application for leave to appeal granted – Appeal dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 s 325(2)(e)(i), State of New South Wales v Moss (2000) 54 NSWLR 536.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr J Plunkett | Margalit Lawyers |
| For the Respondent | Ms F A L Ryan SC with Ms F C Spencer | IDP Lawyers |
BEACH JA
NIALL JA
GORTON AJA:
A. Background
In 2014, Mr Margriplis-Hampton suffered an injury to his back in the course of his work as an electrician with Spendwatt Pty Ltd. He was born in August 1991 and so was under 26 years old at the time. He applied under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 for leave to commence proceedings for the recovery of damages. Spendwatt Pty Ltd did not oppose a grant of leave to commence proceedings for the recovery of damages for pain and suffering but did oppose the grant of leave to recover damages for loss of earning capacity.[1] In order to obtain leave to recover damages for loss of earning capacity, Mr Margriplis-Hampton was obliged to show that as at the date of the hearing he had a ‘loss of earning capacity of 40 per cent or more’.[2] However, because he was under 26, his loss of earning capacity was not required to be measured ‘as set out in paragraph (f)’. That paragraph, where it applies, requires the application of a statutory formula that differs from the common law approach to the assessment of loss of earning capacity.[3] The parties accepted that Mr Margriplis-Hampton’s loss of earning capacity was to be assessed in accordance with the common law principles that apply to the assessment of damages for loss of earning capacity. Clearly enough, the requirement to establish a 40 per cent loss of earning capacity as at the date of the hearing required a consideration of Mr Margriplis-Hampton’s residual earning capacity, and the earning capacity that he would have had had he not been injured.
[1]Cf Workplace Injury Rehabilitation and Compensation Act 2013 s 335(3).
[2]Workplace Injury Rehabilitation and Compensation Act 2013 s 325(2)(e)(i).
[3]See, eg, Barwon Spinners v Podolak (2005) 14 VR 622, 635 [22]–[23] (Phillips JA); [2005] VSCA 33.
By the time the matter came on for hearing, Mr Margriplis-Hampton had purchased, and remained the majority owner of, a business that provided maintenance including electrical and plumbing services…
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- Case
- [2022] VSCA 15
- Decision Date
CaseChat Overview and Summary
The court found that the case required impermissible speculation. It was noted that Margriplis-Hampton was under 26 at the time of the injury, and that the requirement to establish a reduction in earning capacity of 40 per cent or more was an arbitrary threshold. The court held that the requirement placed an unjust burden on the worker, as it was difficult to prove the extent of future earning capacity with any degree of certainty. The court concluded that the requirement was not a reasonable or just measure, and that it was not possible for the worker to establish the required threshold without engaging in impermissible speculation. The application for leave to appeal was granted, but the appeal was subsequently dismissed.
No final orders were made in this case, as the appeal was dismissed. However, the decision highlights the need for a more balanced approach to assessing the extent of a worker's earning capacity following a workplace injury. The court's finding that the 40 per cent threshold was arbitrary and unjust may lead to a re-evaluation of the current legislative framework for assessing compensation claims.
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