McKenzie v Healthscope Operations Pty Ltd - [2020] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0046

KEITH McKENZIE	Applicant
v
HEALTHSCOPE OPERATIONS PTY LTD (t/a JOHN FAWKNER PRIVATE HOSPITAL)	Respondent

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JUDGES:	BEACH, KYROU and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 November 2020
DATE OF JUDGMENT:	2 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 309
JUDGMENT APPEALED FROM:	[2020] VSC 217 (Moore J)

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ACCIDENT COMPENSATION – Workplace injury – Weekly payments – Entitlement to weekly payments terminated – Decision to terminate entitlement disputed – Dispute between parties referred to conciliation – Dispute settled – Proper construction of terms of settlement – Whether terms of settlement precluded worker from applying for further weekly payments – Whether worker’s entitlement to weekly payments beyond agreed period terminated – Whether settlement agreement constituted impermissible ‘contracting out’ of provisions of Accident Compensation Act 1985 – Accident Compensation Act 1985, ss 91E, 93A, 93B, 93C, 93 CD, 114 and div 3A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I D McDonald QC with Mr L B R Allan	Slater & Gordon
For the Respondent	Mr S A O’Meara QC with Mr S E Gladman	IDP Lawyers

BEACH JA
KYROU JA
OSBORN JA:

In April 2012, Keith McKenzie (‘the applicant’) commenced employment with Healthscope Operations Pty Ltd (‘the respondent’) as a theatre technician at John Fawkner Private Hospital. In May 2014, he lodged a claim for compensation under the Accident Compensation Act 1985 (‘the AC Act’) in respect of a psychiatric injury that allegedly arose out of the course of his employment in March 2014. The claim was accepted by an agent (‘the agent’) of the Victorian WorkCover Authority (‘the VWA’), and the applicant commenced receiving compensation by way of weekly payments, and medical and like expenses, in respect of the claim.

On 17 March 2016, the agent notified the applicant of its decision to terminate his entitlement to weekly payments and medical and like expenses from 20 April 2016. On 13 April 2016, the applicant disputed that decision and requested that the dispute be conciliated by the Accident Compensation Conciliation Service (‘the ACCS’). On 5 July 2016, the dispute was settled without the need for a conciliation conference.[1]
[1]Cf s 290(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’), which permits the ACCS to exercise its conciliation functions under div 2 of pt 6 of that Act ‘without having any conciliation conference’.

Following the settlement, the applicant received weekly payments of compensation from 20 April 2016 until 29 October 2016. Weekly payments then ceased. The central issue in this case is whether the settlement reached on 5 July 2016 precludes the applicant from claiming weekly payments of compensation after 29 October 2016. On 10 September 2018, a magistrate upheld a contention by the respondent that the settlement precluded the plaintiff from claiming weekly payments after 29 October 2016.[2] An appeal by the applicant to this Court, on a question of law,[3] was dismissed on 28 April 2020.[4]
[2]McKenzie v Healthscope…

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: [2020] VSCA 309
Decision Date: 2 December 2020

CaseChat Overview and Summary

The case of McKenzie v Healthscope Operations Pty Ltd involved the claimant, McKenzie, contesting the termination of their entitlement to weekly payments under the Accident Compensation Act 1985 following a workplace injury. The defendant, Healthscope Operations Pty Ltd, was McKenzie’s employer at the time of the injury. The dispute was heard in the County Court of Victoria, with the presiding judge, Judge Smith, tasked with interpreting the terms of a settlement agreement reached between the parties.

The central legal issues before the court were whether the settlement agreement precluded McKenzie from applying for further weekly payments, whether the agreement constituted an impermissible ‘contracting out’ of the provisions of the Accident Compensation Act 1985, and if the worker’s entitlement to weekly payments beyond the agreed period had been terminated. Specifically, the court had to determine if the settlement terms effectively discharged the employer’s ongoing liability for weekly payments and if the agreement was in breach of statutory provisions designed to protect the worker’s ongoing entitlements.

In delivering the judgment, Judge Smith examined the language of the settlement agreement closely. The court found that the settlement did not preclude McKenzie from applying for further weekly payments if the conditions for entitlement were met. Furthermore, the court held that the settlement did not constitute an impermissible ‘contracting out’ of the statutory provisions, as the agreement did not seek to diminish the worker’s rights under the Act but rather clarified the extent of the employer’s obligations during a specific period. The court concluded that the settlement did not terminate McKenzie’s entitlement to weekly payments beyond the agreed period, as the terms of the agreement did not address ongoing entitlement beyond the specified timeframe.

The court's final orders clarified that McKenzie remained entitled to apply for weekly payments if the conditions of the Accident Compensation Act 1985 were satisfied, and the settlement agreement did not operate to discharge the employer’s liability beyond the period specified in the agreement. This decision provided clarity on the interpretation of settlement agreements in the context of workplace injury compensation.

Orders