Reyes v Tusk Group Pty Ltd - [2025] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0076

REM DELOS REYES	Applicant
v
TUSK GROUP PTY LTD	Respondent

---

JUDGES:	Beach JA, Forbes and J Forrest AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2025
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 20
JUDGMENT APPEALED FROM:	[2024] VCC 725 (Judge Magee)

---

ACCIDENT COMPENSATION – Workplace accident – Serious injury – Application for leave to commence common law proceeding – Lower back injury – Pain and suffering consequences – Whether on a proper evaluation of the impairment consequences as found and as identified by the whole of the evidence, the judge erred in finding that the applicant’s spinal injury did not satisfy the statutory test – Application for leave to appeal granted – Appeal allowed.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 325(2)(c), 328(2).

Ellis Management Pty Ltd v Taylor [2013] VSCA 326, applied.

Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, referred to.

---

Counsel
Applicant:		Mr TP Tobin SC with Ms SC Bailey
Respondent:		Mr SE Gladman KC with Mr R Kumar
Solicitors
Applicant:	Ryan Carlisle Thomas
Respondent:	Minter Ellison

BEACH JA
FORBES AJA
J FORREST AJA:

Rem Delos Reyes (the applicant) sustained a back injury on 13 August 2019 while employed by Tusk Group Pty Ltd (the respondent). His WorkCover claim was accepted. By originating motion filed 11 September 2023 in the County Court, the applicant sought leave pursuant to s 328(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 to commence a claim for damages in respect of his injuries.
Although initially seeking leave in respect of impairment consequences of both pain and suffering, and loss of earning capacity, at the hearing of the application, the applicant only sought leave on the basis of impairment of the function of his spine in respect of pain and suffering consequences.
The application was heard before her Honour Judge Magee on 24 April 2024. The applicant tendered two affidavits by way of evidence-in-chief and was cross-examined and re-examined. He was the only lay witness and the only witness to give oral evidence. The remainder of the evidence constituted medical reports including radiological and operation reports.
There was no issue that the applicant had sustained compensable injury to his lumbar spine that continued to be productive of consequences. Nor did the respondent submit in closing that the applicant’s evidence as to his consequences ought not be accepted. The sole issue as identified by the parties was whether those consequences met the threshold test of ‘at least very considerable’.[1] The shorthand used at trial, described the sole issue as one of ‘range’.[2]
[1]Workplace Injury Rehabilitation and Compensation Act (2013), s 325(2)(c).
[2]Delos Reyes v Tusk Group Pty Ltd [2024] VCC 725, [13] (‘Reasons’).
On 31 May 2024, her Honour determined that the application failed and published reasons.[3] Her Honour…

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.

Keep reading for free

Create a free CaseChat account to read Reyes v Tusk Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSCA 20
Decision Date: 28 February 2025

CaseChat Overview and Summary

The applicant, Mr. Reyes, sought leave to appeal against a decision that dismissed his application to commence a common law proceeding in respect of a workplace accident that resulted in a serious lower back injury. The dispute was heard in the Supreme Court of Victoria, with the Court of Appeal granting leave to appeal and allowing the appeal. The primary judge had found that the applicant's spinal injury did not satisfy the statutory test for serious injury under the Workplace Injury Rehabilitation and Compensation Act 2013.

The legal issues before the court involved whether the primary judge erred in his evaluation of the impairment consequences of the applicant’s spinal injury. Specifically, the court had to determine if the statutory test for serious injury was correctly applied in the context of the evidence presented. The applicant argued that the primary judge should have considered the entirety of the evidence, which included expert medical evidence, to reach a proper conclusion about the impairment consequences of his injury. The respondent, Tusk Group Pty Ltd, contended that the primary judge's findings were correct and that the statutory test had been properly applied.

The court found that the primary judge had erred in his evaluation of the impairment consequences. The primary judge had overlooked certain evidence and had not adequately considered the overall impact of the applicant's injuries. The court held that, when all the evidence was properly evaluated, the applicant's spinal injury did indeed satisfy the statutory test for serious injury. The court further held that the primary judge's error was significant enough to warrant granting leave to appeal and allowing the appeal.

As a result of the court's decision, the applicant's application for leave to appeal was granted, and the appeal was allowed. The specific orders of the court will direct that the matter be remitted to the primary court for further consideration of the applicant's entitlement to commence a common law proceeding for his workplace injury.

Orders