Vision Australia Ltd v Elisha [No 2] - [2023] VSCA 288

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0018

VISION AUSTRALIA LIMITED	Applicant
v
ADAM ELISHA [NO 2]	Respondent

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JUDGES:	McLEISH, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 288
JUDGMENT APPEALED FROM:	[2022] VSC 754 (O’Meara J)

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DAMAGES – Respondent successful in establishing breach of contract – Whether award of nominal damages prohibited under Workplace Injury Rehabilitation and Compensation Act 2013, s 340(c) – Whether nominal damages are damages ‘in respect of an injury’ in proceedings in accordance with pt 7 div 2.

COSTS – Where leave to appeal granted and appeal allowed – Where applicant substantially successful party – Respondent ordered to pay 80 per cent of costs – Chen v Chan [2009] VSCA 233, applied.

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Counsel for written submissions
Applicant:		Mr PM O’Grady KC with Mr LR Howard and Mr GA Worth
Respondent:		Mr JP Brett KC with Ms E Latif and Mr E Makowski
Solicitors
Applicant:	IDP Lawyers
Respondent:	Arnold Thomas & Becker

MCLEISH JA
KENNEDY JA
MACAULAY JA:

On 1 November 2023 we delivered reasons in this matter.[1] We found that the trial judge erred in awarding the damages he did by reason of breach of contract. However, he made no error in holding that Vision Australia Limited (‘Vision’) did not owe the alleged duty of care, with the result that the case in negligence also failed.
[1]Vision Australia Ltd v Elisha [2023] VSCA 265 (‘Reasons’); these reasons should be read together with those Reasons.
Accordingly, we determined that we would grant leave to appeal, allow the appeal, and set aside the damages award of $1,442,404.50.
We did not pronounce final orders on 1 November, but directed the parties to file written submissions as to a form of final order disposing of the appeal, in the absence of agreement.
Following the receipt of further submissions,[2] three issues arise for consideration:
•whether the Court should award nominal damages;
•what order should be made as to the costs of the trial; and
•what order should be made as to the costs of the application for leave to appeal and the appeal.
[2]Both parties filed submissions on 15 November 2023. Further submissions were also filed on 21 November 2023, subsequent to our request that the parties address, inter alia, whether an award of nominal damages was ‘in respect of an injury’ for the purposes of s 340 of the Workplace Injury Rehabilitation and Compensation Act 2013.
It is convenient to deal with the first two issues together, given that any award of nominal damages may affect the appropriate order as to the costs of the trial under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’).[3]
[3]Both parties apparently accepted that the provisions of pt 7 div 2 of the Act applied to the trial proceeding on the basis that it was a proceeding ‘in accordance with this Division’ for the…

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: [2023] VSCA 288
Decision Date: 28 November 2023

CaseChat Overview and Summary

The case of Vision Australia Ltd v Elisha [No 2] involved a dispute between Vision Australia Ltd, an organisation providing services to people with vision impairment, and Elisha, an individual who was formerly employed by Vision Australia Ltd. The primary issue in this case was whether the respondent, Elisha, was entitled to nominal damages for breach of contract, given the constraints imposed by the Workplace Injury Rehabilitation and Compensation Act 2013, specifically section 340(c). Additionally, the court had to determine whether such nominal damages could be considered as damages ‘in respect of an injury’ within the meaning of proceedings in accordance with Part 7 Division 2 of the Act.

The legal issues addressed by the court involved interpreting the statutory provisions and their implications on the award of damages. The court considered whether the statutory restrictions on compensation for injuries under the Act extended to nominal damages for breach of contract. It also examined the nature of nominal damages and whether they could be classified as damages ‘in respect of an injury’ for the purposes of the statutory scheme. The court found that the statutory provisions did not preclude the award of nominal damages for breach of contract, as they did not constitute compensation for an injury, but rather recognised the legal wrong of the breach itself.

In its reasoning, the court held that the statutory restrictions on compensation did not extend to nominal damages. The court distinguished nominal damages from compensatory damages, emphasising that nominal damages are not intended to compensate for actual loss but to affirm the plaintiff’s rights. The court also concluded that nominal damages were not ‘in respect of an injury’ and therefore not subject to the statutory limitations on compensation for injuries. This interpretation allowed the respondent to be awarded nominal damages for the breach of contract. Furthermore, regarding costs, the court ordered the respondent to pay 80% of the applicant’s costs, following the principles established in Chen v Chan [2009] VSCA 233.

Orders