Legal Research
Cases
Nicholson v Victorian WorkCover Authority

Nicholson v Victorian WorkCover Authority

Case [2016] VSCA 146 24 June 2016

Pecuniary Loss Damages

Loss of Earning Capacity

Gross Income from Personal Exertion

Workers Compensation Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0021
DAVID JAMES NICHOLSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGES:	OSBORN, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2016
DATE OF JUDGMENT:	24 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 146

---

ACCIDENT COMPENSATION – Case stated – Worker injured in course of employment – Serious injury application – Application for leave to commence a proceeding claiming damages for pecuniary loss – Pecuniary loss damages – Loss of earning capacity – Loss of earning capacity of 40 per centum or more measured as set out in s 134AB(38)(f) of the Accident Compensation Act 1985 – Gross income from personal exertion – Meaning of ‘Gross income from personal exertion’ – Allowances – Allowances received in capacity of employee – Whether allowances form part of gross income from personal exertion – Whether expenses incurred should be deducted from allowances – Accident Compensation Act 1985, ss 134AB(38)(a), 134AB(38)(e) and 134AB(38)(f) – Transport Accident Act 1986, ss 6, 44 and 45.

WORDS AND PHRASES – Gross income from personal exertion – Meaning of ‘Gross income from personal exertion’ – Accident Compensation Act 1985, ss 134AB(38)(a) and 134AB(38)(f) – Transport Accident Act, s 6(2).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B E Walters QC with Mr C S Smale	Ryan Carlisle Thomas
For the Respondent	Mr S A O’Meara QC with Ms F A L Ryan	IDP Lawyers

OSBORN JA

BEACH JA
McLEISH JA:

Introduction

On 27 September 2010, the plaintiff suffered an injury to his left knee in the course of his employment with Epping Timber Prefab Co Pty Ltd (‘Epping Timber’). The plaintiff did not return to work with Epping Timber beyond September 2010, and his employment was terminated on 21 February 2013. In May 2013, the plaintiff commenced employment as a part-time support worker for the Pyrenees Shire. In his new employment the amounts paid to the plaintiff by his new employer have included a travelling allowance and a clothes allowance (collectively, ‘the allowances’).

On 14 August 2014, the plaintiff filed an originating motion in the County Court seeking leave to issue a proceeding for the recovery of damages, in respect of his knee injury, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Accident Compensation Act’). The plaintiff’s originating motion came on for hearing in Ballarat on 24 September 2015. On the second day of the hearing, the defendant, the Victorian Workcover Authority, conceded that the plaintiff should be permitted to bring a proceeding against Epping Timber for ‘pain and suffering damages’ as defined in s 134AB(37) of the Accident Compensation Act.

Following the defendant’s concession, the issue that remained (and remains) between the parties is whether the plaintiff should be given leave to bring a proceeding against Epping Timber claiming ‘pecuniary loss damages’.[1]
[1]‘Pecuniary loss damages’ is defined in s 134AB(37) of the Accident Compensation Act to mean:
… damages for loss of earnings, loss of earning…

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.

Continue reading Nicholson v Victorian WorkCover Authority

Details

AGLC: Nicholson v Victorian WorkCover Authority [2016] VSCA 146
Case: [2016] VSCA 146
Decision Date: 24 June 2016

CaseChat Overview and Summary

In Nicholson v Victorian WorkCover Authority, the court was tasked with interpreting the meaning of 'gross income from personal exertion' for the purposes of calculating pecuniary loss damages under the Accident Compensation Act 1985. The case arose from a serious injury sustained by the plaintiff during the course of his employment, leading to a claim for damages under the Transport Accident Act 1986. The Victorian WorkCover Authority was responsible for assessing the extent of the plaintiff's loss of earning capacity, which necessitated a determination of the relevant income figures to be used in the calculation.

The primary legal issues before the court involved the interpretation of sections 134AB(38)(a), 134AB(38)(e), and 134AB(38)(f) of the Accident Compensation Act and section 6(2) of the Transport Accident Act. Specifically, the court had to decide whether allowances received by the plaintiff in his capacity as an employee should be included in the calculation of 'gross income from personal exertion' and, if so, whether expenses incurred should be deducted from these allowances before calculating the loss of earning capacity. This interpretation was crucial because the amount of the plaintiff's loss of earning capacity determined his entitlement to damages.

The court found that 'gross income from personal exertion' includes allowances received by an employee as part of their remuneration, provided they are received in the capacity of an employee. Furthermore, the court ruled that expenses incurred in the course of earning such allowances should be deducted from them before calculating the loss of earning capacity. This interpretation was based on the plain language of the statutes and the purpose of the provisions, which aimed to provide fair and accurate compensation for serious injuries sustained in the course of employment. The court's decision clarified the scope of 'gross income from personal exertion' and provided a framework for future calculations of pecuniary loss damages under the Accident Compensation Act.

The final orders of the court provided clarity on the interpretation of 'gross income from personal exertion', ensuring that allowances received by employees are included in the calculation of damages for loss of earning capacity, with appropriate deductions for related expenses. This decision provided much-needed guidance for future claims and assessments under the relevant Acts.

Orders