Victorian WorkCover Authority v Nguyen - [2016] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0029

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
NGA THI THU NGUYEN	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2016
DATE OF JUDGMENT:	24 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 284
JUDGMENT APPEALED FROM:	[2016] VCC 118 (Judge Dyer)

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ACCIDENT COMPENSATION – Appeal – Application for leave to appeal – Workplace injury – Serious injury application – Reliance on para (a) of definition of serious injury in s 134AB(37) – Impairment of function of upper limb – Whether judge impermissibly took into account psychological or psychiatric consequences of physical injury – Application refused – Application of Meadows v Lichmore Pty Ltd [2013] VSCA 201 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S A O’Meara QC with Ms M Norton	Hall & Wilcox
For the Respondent	Ms M A Hartley QC with Mr J F Goldberg	Slater and Gordon Ltd

OSBORN JA
PRIEST JA
BEACH JA:

Introduction

By an originating motion in the County Court, the respondent, Nga Thi Thu Nguyen, sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘ACA’) to bring a proceeding for common law damages in relation to an injury to her neck and right shoulder and arm. She relied on para (a) of the definition of serious injury in s 134AB(37), and sought leave in relation to both pain and suffering damages and pecuniary loss damages.

Mrs Nguyen’s application was heard over two days in February 2016. It was opposed by the applicant, Victorian WorkCover Authority (‘VWA’). The evidence before the judge included two affidavits sworn by Mrs Nguyen; various medical and radiological reports; video surveillance footage; an earnings summary; and documents regarding Mrs Nguyen’s work capacity in 2011 and 2012. There had been a total of 15 hours of surveillance, resulting in one hour and 52 minutes of footage (approximately 36 minutes of which was played in court).

On 25 February 2016, the judge granted leave to Mrs Nguyen to claim damages at common law with respect to ‘both pecuniary loss and pain and suffering consequences in accordance with section 134AB(16)(b)’ of the ACA.[1]
[1]Nguyen v Victorian WorkCover Authority [2016] VCC 118 [69] (‘Reasons’).

VWA seeks leave to appeal relying on a single ground expressed as follows:

The primary judge failed to exclude from consideration the symptoms and consequences of [Mrs Nguyen’s] non-organic chronic pain disorder —
(a) contrary to sub-s 134AB(38)(h) or (i) (or both of them) of the Accident Compensation Act 1985 (Vic);
(b) by reason of which his Honour erroneously granted the respondent leave pursuant to sub-s 134AB(16)(b) of that Act.

As we have mentioned, Mrs Nguyen relied on s 134AB(37)(a) of the ACA with respect to claimed permanent serious impairment of her neck and right shoulder affecting the function of the right upper limb.[2] She did not rely on para (c) of the subsection.[3] VWA accepted that Mrs Nguyen had suffered an injury in about 2009.…

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: [2016] VSCA 284
Decision Date: 24 November 2016

CaseChat Overview and Summary

In the Victorian Court of Appeal, the case of Victorian WorkCover Authority versus Nguyen was heard. The dispute centred on the interpretation and application of provisions under the Workplace Injury Rehabilitation and Compensation Act 1998 (Vic). Specifically, it involved the definition of a "serious injury" for the purpose of a serious injury application. The lower court had previously determined that the injury sustained by the appellant did not constitute a serious injury under the relevant provisions. The appellant sought leave to appeal this decision, arguing that the lower court had erred in its interpretation of the statutory definition of "serious injury".

The court was required to decide whether the lower court had correctly interpreted the statutory provisions and, in particular, whether it had erred in failing to consider the psychological or psychiatric consequences of the physical injury. The appellant contended that the lower court had improperly disregarded these consequences, which were integral to the impairment of function of the upper limb. The respondent, on the other hand, argued that the lower court had correctly applied the statutory provisions and that the psychological consequences were not relevant to the assessment of the injury under the particular subsection of the statute.

The court held that the lower court had not erred in its interpretation of the statutory provisions. It found that the lower court had correctly applied the definition of "serious injury" as per the relevant subsection and had not taken into account any psychological or psychiatric consequences that were not pertinent to the impairment of function of the upper limb. The court referred to the decision in Meadows v Lichmore Pty Ltd [2013] VSCA 201, which emphasised the need to strictly adhere to the statutory definitions when determining the nature of an injury. Consequently, the application for leave to appeal was refused.

No further orders were made as the application for leave to appeal was denied.

Orders