Weldemichael v ID Sales & Repairs Pty Ltd - [2019] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0101

KIFLE WELDEMICHAEL	Applicant
v
ID SALES & REPAIRS PTY LTD	Respondent

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JUDGES:	PRIEST AP, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 March 2019
DATE OF JUDGMENT:	1 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 68
JUDGMENT APPEALED FROM:	[2018] VCC 1022 (Judge Cohen)

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ACCIDENT COMPENSATION – Application for leave to appeal – Workplace injury – Serious injury application – Loss of earning capacity – Whether applicant suffered permanent loss of earning capacity of 40 per cent or more – Suitable employment – Failure to undertake reasonable rehabilitation – Relevance of failure to undertake reasonable rehabilitation – Judge’s reasons – Whether judge’s reasons adequate – Appeal having no real prospect of success – Application for leave to appeal refused – Accident Compensation Act 1985, ss 134AB(16)(b) and 38(e)-(g).

WORDS AND PHRASES – Suitable employment – Accident Compensation Act 1985, s 5(2)(b) – Workplace Injury Rehabilitation and Compensation Act 2013, s 3.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J M Forbes QC with Ms A Smietanka	Victorian Bar Pro Bono Scheme
For the Respondent	Mr J P Gorton QC with Mr S E Gladman	IDP Lawyers

PRIEST AP

BEACH JA
NIALL JA:

Between September 2002 and July 2006, the applicant was employed by the respondent as a trailer mechanic, carrying out mechanical repairs and servicing semi-trailers. His work involved him performing many strenuous tasks over long working hours and, as a result, he began to develop pain, initially in his left groin and abdominal area, and later in his right abdominal, groin and hip area.

By an originating motion filed in the County Court on 19 September 2016, the applicant sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages for the injuries he alleged he sustained in the course of his employment with the respondent. The applicant relied upon paragraphs (a) and (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act.[1] He sought leave to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’.[2]
[1]The expression ‘serious injury’ is defined in paragraph (a) of its definition to mean ‘permanent serious impairment or loss of a body function’, and in paragraph (c) to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.
[2]As those expressions are defined in s 134AB(37) of the Act.

In relation to his claim under paragraph (a) of the definition of ‘serious injury’, the applicant initially identified a number of different body functions which he alleged were serious injuries. Those body functions included the right hip (with associated right abdomen, buttock and groin), the left hip (with associated left abdomen, buttock and groin), the lumbar spine, the right shoulder, and the left and right knees.

The applicant’s proceeding was heard in the County Court by Judge Cohen over nine days in April…

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: [2019] VSCA 68
Decision Date: 1 April 2019

CaseChat Overview and Summary

Weldemichael has applied for leave to appeal a decision of the Workers Compensation Magistrate, who dismissed his application for a serious injury determination under the Accident Compensation Act 1985. The dispute concerns whether the applicant suffered a permanent loss of earning capacity of 40 per cent or more as a result of a workplace injury. The case was heard in the Supreme Court of Victoria.

The court had to decide whether the magistrate’s reasons were adequate, particularly in relation to the relevance of the applicant’s failure to undertake reasonable rehabilitation and whether this failure was properly considered in determining the loss of earning capacity. The applicant argued that the reasons were inadequate and that the magistrate failed to consider his failure to undertake rehabilitation in the context of suitable employment. The respondent contended that the reasons were sufficient and that the failure to undertake rehabilitation was properly considered.

The court found that the magistrate had adequately considered the applicant’s failure to undertake rehabilitation and that this was relevant to the assessment of the applicant’s loss of earning capacity. The court held that the reasons provided by the magistrate were sufficient and that the applicant’s failure to undertake reasonable rehabilitation was properly taken into account. The court further found that the application for leave to appeal had no real prospect of success. Therefore, the application was dismissed.

The court did not make any orders beyond dismissing the application for leave to appeal. The decision of the magistrate remains in place, and the applicant’s application for a serious injury determination was ultimately unsuccessful.

Orders