Victorian WorkCover Authority v Perumal - [2024] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0120

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
BASKARAN PERUMAL	Respondent

S EAPCI 2023 0140

BASKARAN PERUMAL	Cross-Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Cross-Respondent

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JUDGES:	BEACH, WALKER JJA and O’MEARA AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2024
DATE OF JUDGMENT:	28 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 107
JUDGMENT APPEALED FROM:	[2023] VCC 1786 (Judge Purcell)

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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Respondent struck by concrete panel and suffered displaced compound fracture of the right radius, surgically treated – Ongoing forearm and wrist pain – Subsequent surgery to remove metalware – Primary judge granted leave to the respondent to commence common law proceedings as a consequence of being satisfied that the economic consequences were ‘at least very considerable’ and that the statutory formula was satisfied – Applicant claims specific errors, particularly whether there was evidence that respondent would permanently suffer a loss of earning capacity of 40 per cent or more – No error shown – Application for leave to appeal granted, but appeal dismissed – Cross-application for leave to appeal unnecessary to determine.

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 325(2)(c), (e), (f), (g), (j) and 335(5)(b).

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Palmer Tube Mills v Semi [1998] 4 VR 439; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 ; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Connelly v Transport Accident Commission [2024] VSCA 20, applied.

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Counsel
Applicant/Cross-Respondent:		Mr RD Kumar with Ms L Glass
Respondent/Cross-Applicant:		Mr LBR Allan with Ms S Fernando
Solicitors
Applicant/Cross-Respondent:	Wisewould Mahony
Respondent/Cross-Applicant:	Slater & Gordon

BEACH JA
WALKER JA
O’MEARA AJA:

The respondent was injured in a workplace accident in December 2018, when a slab of concrete, which was being lifted by a crane, swung and struck his arm. He suffered a displaced compound fracture of the right radius. He underwent surgery and the fracture was fixed with a metal plate and screws. He was able to return to work initially, but continued to suffer pain. After a dispute with his employer about the duties he was fit to perform, he ceased work in mid-2019. In January 2023 the metal plate was removed, and his pain improved. However, he has not returned to work.
In February 2021 the respondent sought leave under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’) to bring a proceeding for the recovery of damages in respect of the injury. The judge concluded that the applicant’s pain and suffering did not reach the statutory threshold of ‘at least very considerable’, as required by s 325(2)(c) of the WIRC Act, and thus his pain and suffering did not provide a basis for the grant of leave. However, the judge granted leave on…

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: [2024] VSCA 107
Decision Date: 28 May 2024

CaseChat Overview and Summary

The Victorian WorkCover Authority brought an appeal against the decision of the County Court which granted the respondent leave to commence common law proceedings. The respondent, Perumal, had suffered a workplace accident, resulting in a displaced compound fracture of the right radius, which was treated surgically. Despite the initial surgery, Perumal experienced ongoing pain in his forearm and wrist, necessitating a further operation to remove the metalware. The primary judge determined that the economic consequences of the injury were at least very considerable and that the statutory formula was satisfied, thus allowing Perumal to proceed with common law claims.

The legal issues before the court included whether the respondent would permanently suffer a loss of earning capacity of 40 per cent or more and whether there was evidence to support this claim. The applicant also argued that the primary judge had made specific errors in reaching the conclusion that the statutory criteria were met. The court examined the evidence presented and the relevant statutory provisions under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), focusing on sections 325(2)(c), (e), (f), (g), (j) and 335(5)(b).

The court held that no errors were evident in the primary judge’s decision. It found that the evidence supported the conclusion that Perumal would suffer a permanent loss of earning capacity of at least 40 per cent. The reasoning of the primary judge was consistent with relevant authorities, including Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission, Palmer Tube Mills v Semi, Advanced Wire & Cable Pty Ltd v Abdulle, Yirga-Denbu v Victorian WorkCover Authority, Cardoso v Staff Australia Payroll Services Pty Ltd, and Connelly v Transport Accident Commission. Consequently, the application for leave to appeal was granted, but the appeal itself was dismissed. The cross-application for leave to appeal was deemed unnecessary to determine.

Orders