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McVey v G LJ & L J Smith Pty Ltd

McVey v G LJ & L J Smith Pty Ltd

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Case Copied 17 December 2012 42 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0018

WILLIAM JAMES McVEY (by his litigation guardian Anthony Bullard)	Appellant
	v
G J & L J SMITH PTY LTD	First Respondent
G J & L J SMITH PTY LTD	and
VICTORIAN WORKCOVER AUTHORITY	Second Respondent

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JUDGES	MAXWELL P, TATE JA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 August 2012
DATE OF JUDGMENT	17 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 312
JUDGMENT APPEALED FROM	McVey v G J & L J Smith Pty Ltd & VWA [2011] VCC 135

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ACCIDENT COMPENSATION – Workers’ compensation – Workplace accident – Permanent disability – Claim for lump sum compensation – Claim limited to physical injuries – Later claim for compensation for psychiatric injury arising from same event – Schizophrenia condition – Statutory prohibition against multiple claims in respect of one event – Whether second claim valid – Whether first claim vitiated by mental incapacity – Appellant incapable of recognising own psychiatric impairment – First claim did not bar second claim – Appeal allowed – Accident Compensation Act 1985 (Vic) ss 45, 98C, 104B(5A), (5AA).

ACCIDENT COMPENSATION – Workers’ compensation – Appeal from County Court – Appeal on question of law ‘raised during the proceedings below’ – Whether open to challenge primary decision as ‘not open’ – Whether open to contend that primary judge ‘bound’ to reach different conclusion – Grounds of appeal valid – Green v VWA [1997] 1 VR 364 followed – Accident Compensation Act 1985 (Vic) s 52(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Melbourne Injury Lawyers
For the First and Second Respondents	Mr J J Noonan QC with Mr B R McKenzie	Herbert Geer

MAXWELL P
TATE JA:

Summary

This appeal raises two important questions of accident compensation law. The first concerns the scope of an appeal from the County Court under s 52(1) of the Accident Compensation Act 1985 (the ‘Act’). The second concerns the prohibition (now contained in s 104B(5AA) of the Act) against lodging more than one claim for compensation under s 98C of the Act in respect of injuries arising out of the same event.[1] The question which arises is whether a prior claim can be disregarded for this purpose if, at the time of lodging that claim, the claimant was suffering from a relevant mental incapacity.
[1]The equivalent provision at the time of the appellant’s claim was s 104B(5B) of the Act — see [39] below.

The trial judge dismissed the present proceeding on the ground that it involved a second claim under s 98C in respect of the same event, a 1999 workplace accident. An earlier claim by the appellant, Mr McVey, under s 98C — concerning a different injury suffered in that accident (the ‘first claim’) — had been the subject of a lump sum settlement some years earlier.

The judge rejected Mr McVey’s contention that he lacked relevant mental capacity at the time he made the first claim. This appeal, brought under…

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: [2012] VSCA 312
Decision Date: 17 December 2012

CaseChat Overview and Summary

The case before the court involved an appeal from a decision made in the County Court regarding a workers' compensation claim. McVey, the appellant, had suffered a workplace accident and subsequently filed a claim for lump sum compensation. Initially, McVey's claim was limited to physical injuries. Later, McVey claimed compensation for a psychiatric injury, specifically schizophrenia, that arose from the same accident. The respondent, G LJ & L J Smith Pty Ltd, contested the validity of the second claim, arguing it was prohibited under the statutory framework due to the prohibition against multiple claims for the same event. Additionally, the respondent contended that the first claim was vitiated by McVey's mental incapacity, as he was incapable of recognising his psychiatric impairment at the time of the initial claim.

The court was required to determine whether the second claim for psychiatric injury was valid and whether it was barred by the first physical injury claim. Another key issue was whether McVey's mental incapacity at the time of the first claim invalidated that claim, thereby allowing for a second claim. The court also needed to address the validity of the grounds of appeal, specifically whether it was permissible to challenge the primary decision as 'not open' and to argue that the primary judge was 'bound' to reach a different conclusion.

The court found that the second claim for psychiatric injury was valid and not barred by the initial physical injury claim. It was established that McVey's incapacity to recognise his psychiatric impairment at the time of the first claim did not invalidate that claim, thus allowing for a subsequent claim. The court held that the grounds of appeal were valid, following the precedent set in Green v VWA. The appeal was allowed on the basis that the primary judge's decision was not open to the conclusion reached and that the judge was bound to reach a different outcome. This decision was grounded in the statutory provisions of the Accident Compensation Act 1985 (Vic) and its relevant sections.

Orders