Margriplis-Hampton v Spendwatt Pty Ltd - [2022] VSCA 15

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…

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: [2022] VSCA 15
Decision Date: 22 February 2022

CaseChat Overview and Summary

Margriplis-Hampton was employed by Spendwatt Pty Ltd as a labourer. While performing his duties, Margriplis-Hampton injured his knee. He claimed compensation for the injury under the Workplace Injury Rehabilitation and Compensation Act 2013. Spendwatt Pty Ltd denied the claim on the basis that Margriplis-Hampton had not satisfied the threshold of establishing that his earning capacity was reduced by 40 per cent or more. The dispute was heard by the Supreme Court of New South Wales. The central issue before the court was whether Margriplis-Hampton's case required impermissible speculation to establish a reduction in earning capacity of 40 per cent or more.

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.

Orders