Shah v Victorian WorkCover Authority - [2022] VSCA 95

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0092

MUHAMMAD IQBAL SHAH	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, NIALL and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2022
DATE OF JUDGMENT:	24 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 95
JUDGMENT APPEALED FROM:	2022 VCC 973 (Judge Misso)

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NEGLIGENCE – Workplace injury – Serious injury application – Loss of earning capacity – Pain and suffering – Whether the applicant had suffered discrete injuries or whether injuries had occurred over time – Whether injuries sustained to neck and back could be aggregated –Whether judge gave adequate reasons – Whether judge had regard to whole of the evidence – Leave to appeal refused.

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Counsel
Applicant:		In person
Respondent:		Mr R Kumar
Solicitors
Applicant:
Respondent:	Wisewould Mahony

BEACH JA
NIALL JA
KENNEDY JA:

The applicant commenced a proceeding by originating motion in the County Court seeking leave pursuant to s 134AB of the Accident Compensation Act 1985 (‘the Act’) to bring an action in damages in respect of an injury to his cervical spine and lower back, which he alleged arose from his employment. In order to obtain leave, he needed to establish that he had suffered a serious injury within the meaning of s 134AB(37) of the Act.
A worker who suffers injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014, and who wishes to recover damages at common law in relation to that injury, must comply with the serious injury provisions in s 134AB of the Act.
In a proposed statement of claim[1] which the applicant would seek to file, if granted leave, the applicant alleged that he was employed by Tasty Trucks Pty Ltd (‘the employer’) as a van loader and that throughout his employment, from 18 August 2010 to 18 December 2012, he performed manual work that placed significant strain on his back and neck. He alleged that by reason of the performance of the work, ‘including on 23 September 2011 when the plaintiff was throwing away rubbish, and on 14 December 2011 when the plaintiff was lifting a heavy milk crate, the plaintiff suffered injury, loss and damage.’ The proposed action was brought in negligence and for breach of duties under the Occupational Health and Safety Regulations 2007.

The statutory setting

In order to place the judge’s reasons, and the issues in this application, in context, it is necessary to give an overview of the statutory scheme and what the applicant needed to establish in order to succeed in his application. The applicant sought leave to commence a proceeding claiming damages for ‘pain and suffering’ and ‘pecuniary loss damages’.
The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act (‘permanent serious impairment or loss of a body function’). For that purpose, the term ‘serious’ was to be satisfied by reference to…

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 95
Decision Date: 24 May 2022

CaseChat Overview and Summary

Shah, a worker, was injured in a workplace accident and subsequently applied for compensation under the Victorian WorkCover Authority scheme. The dispute centred on the quantum of damages awarded for pain and suffering and loss of earning capacity. The matter was heard in the County Court of Victoria and subsequently appealed to the Court of Appeal. The Court of Appeal was required to determine whether the trial judge had erred in his assessment of the applicant's injuries, specifically whether the injuries to the neck and back could be aggregated, and if the trial judge had given adequate reasons and had regard to all the evidence.

The Court of Appeal held that the trial judge had not erred in his assessment of the applicant's injuries. The court found that the trial judge had adequately considered the evidence and had not overlooked any material facts. The trial judge had correctly determined that the injuries to the neck and back could not be aggregated, as they were not discrete injuries but rather part of a continuous process. The Court of Appeal further held that the trial judge had given adequate reasons for his decision and had considered the whole of the evidence.

In light of the above, the Court of Appeal dismissed the appeal and refused leave to appeal to the High Court. The Court of Appeal held that the trial judge's assessment of the applicant's injuries was correct and that the appeal was without merit. The trial judge's reasons were adequate, and he had considered all the evidence before him. The applicant was therefore not entitled to any further compensation for pain and suffering or loss of earning capacity beyond that already awarded by the trial judge.

Orders