McKenzie v Healthscope Operations Pty Ltd - [2020] VSC 217

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01694

KEITH McKENZIE	Appellant
v
HEALTHSCOPE OPERATIONS PTY LTD (trading as the John Fawkner Private Hospital)	Respondent

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2019
DATE OF JUDGMENT:	28 April 2020
CASE MAY BE CITED AS:	McKenzie v Healthscope Operations Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 217

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ACCIDENT COMPENSATION – Workplace injuries – Statutory compensation scheme – Appellant’s entitlement to compensation previously terminated – Where appellant disputed termination by referring matter to Accident Compensation Conciliation Service – Where dispute was conciliated and settled with no retraction of termination – Appellant subsequently requested reinstatement of compensation – Whether Magistrate erred in finding that settlement of claims to entitlement to compensation is not precluded by statutory compensation scheme – No error of law in finding that statutory compensation scheme does not preclude settlement of claims to entitlement to compensation – Appeal dismissed – Accident Compensation Act 1985 ss 82, 93, 114(2)(b), 115, 116, 117, 118 – Workplace Injury Rehabilitation and Compensation Act 2013 ss 1, 10, 71, 293, 297, 300 – Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276, applied – Ozbilgi v Bradnams Windows & Doors Pty Ltd [2011] VSCA 210, applied – Perkins v GIO Workers’ Compensation (Victoria) Ltd (County Court of Victoria, Higgins J, 12 December 1995), overruled.

APPEAL – Whether Magistrate erred in upholding defence of accord and satisfaction– No error of law in upholding defence of accord and satisfaction – Appeal dismissed – Magistrates’ Court Act1989 s 109 – Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	T P Tobin SC with S D Dawson	Nowicki Carbone
For the Respondent	S A O’Meara QC with S E Gladman	IDP Lawyers

HIS HONOUR:

This is an appeal brought under s 109 of the Magistrates’ Court Act 1989 against the judgment and orders of the Magistrates’ Court made on 10 September 2018 dismissing a proceeding brought by the appellant in which he sought the reinstatement of weekly payments under the Accident Compensation Act 1985.[1]
[1]Accident Compensation Act 1985 (‘Accident Compensation Act’).

The appellant was employed by the respondent as a theatre technician. On 27 May 2014, he made a claim for compensation under the Accident Compensation Act in respect of a psychiatric injury that allegedly arose out of or in the course of his employment in March 2014. On 20 June 2014, the Victorian WorkCover Authority (the Authority) accepted his claim for weekly payments and medical and like expenses.

On 17 March 2016, the Authority, by its agent, notified the appellant of its decision to terminate those payments. On 13 April 2016, the appellant disputed that decision and requested that the dispute be conciliated by the Accident Compensation Conciliation Service (the ACCS). The dispute was settled without the need…

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] VSC 217
Decision Date: 28 April 2020

CaseChat Overview and Summary

The appellant, McKenzie, appealed against a decision of the Magistrates’ Court of Victoria which found that the respondent, Healthscope Operations Pty Ltd, was not liable to pay compensation for workplace injuries. The dispute arose after McKenzie’s entitlement to compensation was terminated, but he referred the matter to the Accident Compensation Conciliation Service. The dispute was settled through conciliation, with no mention of retracting the termination of compensation. McKenzie later requested reinstatement of compensation, which was denied by the respondent and upheld by the Magistrate. The appellant argued that the settlement did not preclude his entitlement to compensation. The respondent argued that the settlement constituted an accord and satisfaction, and the Magistrate agreed.

The legal issues in this case revolved around whether the settlement of claims to entitlement to compensation is precluded by the statutory compensation scheme. The court had to determine whether the settlement constituted an accord and satisfaction, and if the settlement was valid and binding under the relevant legislation. The appellant argued that the settlement did not preclude his entitlement to compensation, while the respondent argued that the settlement constituted an accord and satisfaction, and the Magistrate agreed.

The court found that there was no error of law in the Magistrate’s finding that the statutory compensation scheme does not preclude settlement of claims to entitlement to compensation. The court held that the settlement did not constitute an accord and satisfaction, as there was no evidence of an intention to discharge the appellant’s entitlement to compensation. The court also found that the settlement was valid and binding under the relevant legislation, and that the respondent was not liable to pay compensation. The appeal was dismissed.

The court further found that there was no error of law in the Magistrate’s upholding of the defence of accord and satisfaction. The court held that the settlement constituted an accord and satisfaction, as there was evidence of an intention to discharge the appellant’s entitlement to compensation. The appeal was dismissed. The court found that the settlement was valid and binding under the relevant legislation, and that the respondent was not liable to pay compensation.

Orders