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Wesfarmers Ltd v Lloyd

Wesfarmers Ltd v Lloyd

Case [2016] VSCA 41 15 March 2016

Compensatory Damages

Occupational Health & Safety

Causation

Personal Injury Law

Employment & Labour Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0055

WESFARMERS LIMITED	Applicant
v
ROBERT LLOYD	Respondent

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JUDGES:	TATE, OSBORN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 February 2016
DATE OF JUDGMENT:	15 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 41
JUDGMENT APPEALED FROM:	Lloyd v Wesfarmers Limited [2015] VCC 680 (Judge Dyer)

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ACCIDENT COMPENSATION – Respondent granted leave to commence common law proceedings – Judge below satisfied that injury ‘serious’ – Respondent crushed by forklift in the course of employment – Respondent suffers ongoing back pain – Whether sufficient identification of injury – Whether sufficient reasons given – Whether injury ‘serious’ – Whether judge below properly assessed significance of retained abilities of the respondent in considering whether the injury was ‘serious’ – Decision to grant leave was open and accorded with the evidence – Decision was not ‘plainly wrong’ – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr S E Gladman	Wisewould Mahony
For the Respondent	Ms M A Hartley QC with Mr C S O’Sullivan	Maurice Blackburn

TATE JA:

For the reasons given by Osborn JA, I agree that leave to appeal should be refused.

OSBORN JA:

Introduction

Mr Lloyd is a 67 year old employee of Wesfarmers Ltd (‘Wesfarmers’) who has worked since 2004 in Bunnings Warehouse stores.

On 23 March 2007, while he was working in the timber yard at the Bunnings Rosebud store, a co-worker accidentally caused a forklift to move suddenly forward and crush him against the steel rack forming the framework for some shelves. The forklift crushed the front of his body in a series of rapidly rebounding movements and also caught his left hand.

As a result Mr Lloyd suffered severe injuries to his chest and pelvis involving flail chest fractures of ribs 5–9 on the left side, and fractures of the right superior and inferior pubic rami. He also suffered a fracture at the base of his left little finger. Finally, he suffered generalised and extensive bruising to the mid-portion of his body.

Mr Lloyd was taken to the local hospital and then flown by air ambulance to the Alfred Hospital, where he was initially treated as an inpatient for one week in the trauma centre He was then an inpatient at the St John of God Hospital, Frankston, for a further three weeks during which he underwent rehabilitation.

His injuries have generally resolved save for ongoing lower back pain. It is the precise cause, extent and degree of severity of the consequences of that pain which are fundamentally in issue in this proceeding.

In 2013, Mr Lloyd sought leave to commence common law proceedings to recover damages for pain and suffering in accordance with s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’). No claim for pecuniary loss is contemplated.

Mr Lloyd relies on paragraph (a) of the definition of serious injury set out in s 134AB(37) of the Act, namely…

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.

Continue reading Wesfarmers Ltd v Lloyd

Details

AGLC: Wesfarmers Ltd v Lloyd [2016] VSCA 41
Case: [2016] VSCA 41
Decision Date: 15 March 2016

CaseChat Overview and Summary

In Wesfarmers Ltd v Lloyd, the respondent, Lloyd, sought to bring common law proceedings for injuries sustained during the course of his employment. Lloyd claimed he was seriously injured when a forklift crushed his back, resulting in ongoing pain. The primary legal issues before the court were whether Lloyd's injury was sufficiently identified, whether the reasons provided were adequate, and whether the injury was indeed serious enough to warrant the proceedings. The court also needed to determine if the judge properly assessed the significance of Lloyd's retained abilities in evaluating the seriousness of his injury.

The court examined whether the lower court judge had correctly exercised their discretion in granting Lloyd leave to proceed with his common law claim. The decision was evaluated based on whether the judge's assessment of the seriousness of the injury was open and supported by the evidence, and whether the reasons provided were sufficient. The court found that the lower court judge had given proper consideration to Lloyd's retained abilities and that the decision to grant leave was neither plainly wrong nor outside the range of acceptable outcomes. Consequently, the application for leave to appeal was refused.

The reasoning behind the court's decision was rooted in the discretionary nature of the lower court's assessment, which was found to be within the acceptable bounds of judicial discretion. The evidence presented indicated that Lloyd had suffered a serious injury, and the lower court judge's evaluation of his retained abilities was deemed appropriate. This assessment led to the conclusion that the judge's decision to allow Lloyd to proceed with his claim was not erroneous. The orders of the lower court were affirmed, and the application for leave to appeal was dismissed.

Orders