Victorian WorkCover Authority v Hartley - [2010] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3712 of 2009

VICTORIAN WORKCOVER AUTHORITY
VICTORIAN WORKCOVER AUTHORITY	1^st Appellant
and
CGU WORKERS COMPENSATION (VIC) LTD	2^nd Appellant
v
RAYMOND HARTLEY	Respondent

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JUDGES:	MANDIE and HARPER JJA and EMERTON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2010
DATE OF JUDGMENT:	14 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 74
JUDGMENT APPEALED FROM:	Hartley v Victorian WorkCover Authority [2008] VCC 1521 (Judge Bowman)

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ACCIDENT COMPENSATION – Claim for lump sum compensation for non-economic loss pursuant to s 98C of the Accident Compensation Act 1985 (Vic) – Complications arising from surgery undertaken for injuries that had already been compensated – Whether further injuries arose out of the ‘same event or circumstance’ as the original injury – No medical negligence – No novus actus interveniens – Accident Compensation Act 1985 (Vic) s 82(1), s 83(1)(d), s 104B(5A), (5AA) and (5AB).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J J Noonan SC with Mr M F Fleming	Hall & Wilcox
For the Respondent	Mr P H Solomon	Winn Legal

MANDIE JA:

I agree with Emerton AJA.

HARPER JA:

I also agree with Emerton AJA.

EMERTON AJA:

By Notice of Appeal dated 26 February 2009, the appellants appeal pursuant to s 52 of the Accident Compensation Act 1985 (Vic) (‘the Act’) from the decision of Judge Bowman in the County Court of Victoria delivered on 15 December 2008.

The proceedings before the judge below arose out of a claim by the respondent for lump sum compensation for non-economic loss pursuant to s 98C of the Act. The respondent sought declarations that the appellants accept his claim for lump sum compensation pursuant to s 98C of the Act and that he was entitled to benefits in relation to specified injuries, and an order that his claim for compensation under s 98C be accepted.

The judge below gave judgment in favour of the respondent and made the declarations and the order sought. The appellants now appeal against the entirety of the judgment given by the judge below.

Facts

On 6 July 1999, the respondent injured his right knee whilst planting trees in muddy ground for Merindoc Pastoral Company, where he had been employed as a gardener and farmhand since 1980. He had periods off work following the injury and its subsequent treatment. For a time, he returned to work on light duties, but ceased work in January 2001. Claims for weekly benefits and medical and similar expenses were admitted and paid.

On 3 November 2001, the respondent made a claim for lump sum benefits under ss 98C and 98E of the Act in respect of a ‘right knee medial strain and cartilage damage’, identified as the ‘primary injury’, and ‘left knee strain due to overcompensation’, identified as the ‘secondary injury’. In May 2004, a further psychological condition was added to this claim.

Several months later, on 26 July 2004, the second appellant, the claims agent managing the respondent’s claim, informed the respondent’s solicitors by…

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: [2010] VSCA 74
Decision Date: 14 April 2010

CaseChat Overview and Summary

The case of Victorian WorkCover Authority v Hartley involved a dispute over a claim for lump sum compensation for non-economic loss. The claimant, Mr Hartley, sought compensation pursuant to section 98C of the Accident Compensation Act 1985 (Vic). The dispute arose from complications that occurred following surgery on injuries Mr Hartley had previously sustained and received compensation for. The Victorian WorkCover Authority contested the claim, arguing that the complications were not a result of the original injury or the subsequent surgery, and therefore, not compensable. The matter was heard in the Court of Appeal.

The legal issues before the court were whether the complications from the surgery arose out of the same event or circumstance as the original injury and whether there was any medical negligence or novus actus interveniens that would exclude the complications from the compensable scope. The court needed to interpret sections 82(1), 83(1)(d), 104B(5A), (5AA) and (5AB) of the Accident Compensation Act 1985 (Vic) to determine if the complications were connected to the original injury.

The court found that the complications did indeed arise out of the same event or circumstance as the original injury, and there was no medical negligence or novus actus interveniens. The complications were a direct result of the original injury and the subsequent surgery, which was performed to address those injuries. The court held that the complications were therefore compensable under the Act. The appeal was dismissed, and the original decision in favour of Mr Hartley was upheld. The court emphasised the importance of considering the entirety of the circumstances and the causal link between the original injury and the complications when determining the compensability of non-economic loss.

Orders