O'Brien Transport Services Pty Ltd v Williams - [2022] VSCA 62

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0072

O’BRIEN TRANSPORT SERVICES PTY LTD	First Applicant
VICTORIAN WORKCOVER AUTHORITY	Second Applicant
v
PATRICK JOHN WILLIAMS	Respondent

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JUDGES:	BEACH, KENNEDY JJA and O’MEARA AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2022
DATE OF JUDGMENT:	12 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 62
JUDGMENT APPEALED FROM:	Williams v O’Brien Transport Services Pty Ltd & Anor (Unreported County Court of Victoria, Judge Wischusen, 4 June 2021)

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WORKER’S COMPENSATION – Respondent injured whilst driving truck – Respondent claimed statutory compensation – Claim accepted – Respondent resumed work after accident – Employer alleged that respondent resigned employment – Weekly payments later claimed – Decision by authorised agent – Decision disputed – Defence rejected – Weekly payments ordered – Interest on weekly payments – Whether authorised agent made a ’decision to terminate or reduce weekly payments’ – Whether interest payable – Statutory construction – Accident Compensation Act 1985, ss 114(2A), 114(2B), 114(2C) and 114E – Primary judge’s decision confirmed – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms F A L Ryan SC with Ms S Gold	Hall & Willcox
For the Respondent	Mr J P Brett QC with Ms F C Spencer	Harris Lieberman Solicitors Pty Ltd

BEACH JA

KENNEDY JA
O’MEARA AJA:

This is an application for leave to appeal from an order of a judge of the County Court. On 4 June 2021, his Honour ordered that the second applicant pay the respondent weekly payments of compensation together with superannuation contributions on the said payments at the rate specified for no current work capacity in accordance with the Accident Compensation Act 1985 (the ‘Act’).

His Honour also made the following order:

4.The second [applicant] pay the [respondent] interest on all outstanding weekly payments in accordance with section 114E(1)(c) of the Act from 21 November 2012 to this date and interest on all outstanding superannuation contributions pursuant to section 114EA of the Act, such order to be stayed for a period of 28 days from this date.
(‘the interest order’)

The only order which is the subject of the current application is the interest order.

For reasons stated below, we have determined that the application for leave to appeal should be refused.

Factual Background

The respondent was born on 17 November 1961. On around 10 April 2012, he started working for O’Brien Transport Services Pty Ltd (the first applicant) as an interstate truck driver.

On 7 September 2012, the respondent was driving a Kenworth prime mover and trailer on the South Gippsland Highway near Koonwarra, in the course of his employment, when the vehicle slid on a slippery surface, jack-knifed, and struck two oncoming vehicles (the ‘accident’).

Before the accident, the respondent had been working the equivalent of at least fulltime hours.

Following the accident, the respondent was unable to return to work between 7 September 2012 and 23 September 2012 due to injuries he sustained in the accident. The respondent later received weekly…

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 62
Decision Date: 12 April 2022

CaseChat Overview and Summary

O'Brien Transport Services Pty Ltd was the employer of the respondent, Williams, who was injured in an accident while driving a truck for the company. Williams claimed compensation under the statutory scheme and the claim was accepted. He returned to work after the accident but later claimed weekly payments from his employer, which were initially paid. However, the employer subsequently alleged that Williams had resigned, and the authorised agent of the employer made a decision that the weekly payments should cease. Williams disputed this decision and claimed that the employer was in breach of the statutory provisions.

The primary legal issue before the court was whether the authorised agent's decision to terminate the weekly payments was valid, and whether interest on the payments was payable under the Accident Compensation Act 1985. The court had to interpret the relevant provisions of the Act, specifically sections 114(2A), 114(2B), 114(2C), and 114E, to determine the rights of the parties.

The court found that the authorised agent did not make a valid decision to terminate the weekly payments, as the provisions of the Act required. The court held that the employer was liable to pay the weekly payments and the interest on them, as provided by the Act. The court confirmed the primary judge's decision and refused the employer's application. The employer was ordered to pay the weekly payments and interest to Williams, as well as costs.

This decision highlights the importance of strict compliance with the statutory provisions when making decisions about workers' compensation claims. Employers must ensure that their authorised agents understand and apply the relevant provisions correctly to avoid liability for compensation and interest.

Orders