Tawakuli v Victorian WorkCover Authority - [2020] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0045

MOHAMMAD TAWAKULI	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	19 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 22
JUDGMENT APPEALED FROM:	[2019] VCC 354 (Judge Parrish)

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ACCIDENT COMPENSATION – Workplace injury to right shoulder – Whether injury satisfied statutory definition of ‘serious injury’ – Application for leave to commence proceedings for damages against respondent – Whether judge failed to give proper consideration to applicant’s submission regarding medical report – Whether trial judge failed to provide adequate reasons – Application for leave to appeal refused – Accident Compensation Act 1985 s 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Mighell QC with Mr R H Ajzensztat	Zaparas Lawyers
For the Respondent	Mr S A O’Meara QC with Ms M Norton	Russell Kennedy Lawyers

BEACH JA
KYROU JA:

Introduction and summary

On 28 February 2013, the applicant commenced full time employment with Raminti Services Pty Ltd (‘Raminti’) as a fencing and factory hand. Over the course of his employment he experienced pain in his right shoulder. On 6 September 2013, the pain became unbearable and he ceased work.

On 11 January 2018, the applicant applied to the County Court for leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘Act’) to bring common law proceedings against the respondent for damages for pain and suffering and pecuniary loss in respect of the injury. On 28 March 2019, the judge refused leave.[1]
[1]Tawakuli v Victorian WorkCover Authority [2019] VCC 354 (‘Reasons’).

Section 134AB(19) of the Act provides that a court must not give leave under s 134AB(16)(b) unless it is satisfied that the injury is a serious injury. The applicant relied on para (a) of the definition of ‘serious injury’ in s 134AB(37), namely, ‘permanent serious impairment or loss of a body function’.

The applicant seeks leave to appeal against the orders made by the judge on two grounds. The first ground is that the judge failed to give proper consideration to the applicant’s submission that the medical report of Mr Michael Dooley dated 31 October 2017 contained an opinion that the applicant was, by reason of an organic impairment to his right shoulder, precluded from returning to unrestricted employment. The second, alternative, ground is that the judge failed to provide adequate reasons for rejecting that submission.

For the reasons that follow, the application for leave to appeal will be refused.

Facts

The applicant is 43 years of age and was born in Afghanistan. He is married and has a daughter aged 11 and a son aged 13. His wife and children live in Pakistan.

The applicant did not complete any formal education or training and could neither read nor write in his native language, Dari. In Pakistan he worked as a panel beater for approximately 27 years before coming to Australia by boat in October 2012. The boat he…

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: [2020] VSCA 22
Decision Date: 19 February 2020

CaseChat Overview and Summary

The applicant, Tawakuli, sought damages for a workplace injury to his right shoulder against the Victorian WorkCover Authority. The primary issue was whether the injury satisfied the statutory definition of a ‘serious injury’ under the Accident Compensation Act 1985. Additionally, the court had to determine whether the judge had failed to give proper consideration to the applicant’s submissions regarding a medical report, and if the trial judge had provided adequate reasons for their decision. The court also considered the application for leave to appeal.

The court examined the statutory definition of a ‘serious injury’ and assessed whether Tawakuli’s injury met the criteria. It scrutinised the medical evidence and submissions to determine if the trial judge had properly considered the applicant’s arguments. The court evaluated whether the reasons provided by the trial judge were sufficient and whether they adequately addressed the issues raised by Tawakuli. The application for leave to appeal was assessed based on the arguments presented regarding the trial judge's decision.

The court found that the trial judge had correctly applied the statutory definition and had given proper consideration to the submissions. The reasons provided by the trial judge were deemed adequate, and no error was found that warranted an appeal. The application for leave to appeal was therefore refused.

No further orders were made beyond the refusal of leave to appeal.

Orders