Sahin v Victorian WorkCover Authority - [2017] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0108

EDLIBAN SAHIN	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	WARREN CJ, BEACH JA and CAMERON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2017
DATE OF JUDGMENT:	10 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 13
JUDGMENT APPEALED FROM:	[2016] VCC 829 (Judge O’Neill)

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ACCIDENT COMPENSATION – Appeal – Application for leave to appeal – Industrial accident – Damages – Assessment of pecuniary loss damages – Loss of earning capacity – Assessment of loss of earning capacity – Bases of assessment of damages for loss of earning capacity – Whether judge erred in assessment of pecuniary loss damages – No error in judge’s assessment – Accident Compensation Act 1985, s 134AB.

INTEREST – Interest on past pecuniary loss damages – Interest from date of commencement of proceeding until date of judgment – Supreme Court Act 1986, s 60 – Accident Compensation Act 1985, s 134AB(34).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Sahin in person (husband of applicant)
For the Respondent	Mr M F Wheelahan SC with Mr M J Hooper	Hall & Wilcox

WARREN CJ

BEACH JA
CAMERON AJA:

On 27 October 2004, Mrs Edliban Sahin, the applicant, was packing oranges into cardboard boxes in the course of her employment with Auchronie Fruit Co Pty Ltd (‘Auchronie’). Having completed packing one of the boxes, the applicant attempted to push the box from a packing bench onto a conveyor belt. In the course of performing this action, the applicant suffered an injury to her right wrist. The next day, the applicant returned to work for a short period but, aside from a brief attempt to return to work, the applicant has not worked since suffering her injury.

On 19 September 2014, a County Court judge (Judge Lawson) gave leave to the plaintiff pursuant to s 134AB of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding against Auchronie.[1] Leave was given to the applicant to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’.[2]
[1]Sahin v Auchronie Fruit Co Pty Ltd [2014] VCC 1550 (‘Serious Injury Reasons’).
[2]As those expressions are defined in s 134AB(37) of the Act.

Pursuant to the leave granted, the applicant commenced a proceeding in the County Court claiming pain and suffering damages and pecuniary loss damages in relation to her injury. The defendant in the County Court proceeding was, and the respondent in this Court is, the Victorian WorkCover Authority. After leave was given to commence a proceeding, Auchronie became deregistered, and the respondent was sued as the insurer of Auchronie pursuant to s 601AG of the Corporations Act 2001 (Cth).

On 22 June 2016, following an 11-day trial, Judge O’Neill of the County Court published reasons for judgment in which he found for the applicant and assessed the applicant’s damages as follows:
Pain and suffering damages:  $225,000
Past loss of wages:  $220,000
Future economic loss:  $132,000
Fox v Wood[3] component:  $…

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: [2017] VSCA 13
Decision Date: 10 February 2017

CaseChat Overview and Summary

The plaintiff, Sahin, sought to appeal against a decision of the Court of Appeal of the Supreme Court of Victoria, which had dismissed his appeal from a County Court decision. The nature of the dispute was the assessment of pecuniary loss damages following an industrial accident. The court was required to decide whether the judge had erred in the assessment of these damages, particularly regarding loss of earning capacity, and whether the judge should have awarded interest on past pecuniary loss damages from the date of the commencement of the proceeding until the date of judgment.

The court examined the judge's assessment of damages for loss of earning capacity, noting that the judge had correctly identified the applicable statutory provisions and principles. The court held that the judge's assessment was not erroneous, as it had been based on appropriate evidence and had correctly applied the statutory guidelines. Regarding the issue of interest on past pecuniary loss damages, the court concluded that the judge had correctly determined that interest should run from the date of the commencement of the proceeding until the date of judgment, in accordance with the Supreme Court Act 1986 and the Accident Compensation Act 1985.

The court found no error in the judge’s assessment of the pecuniary loss damages and upheld the decision of the Court of Appeal. The appeal was dismissed, and the orders of the Court of Appeal were affirmed. The court determined that there was no basis for allowing an appeal against the assessment of damages or the calculation of interest on those damages.

Orders