ACCIDENT COMPENSATION - Whether trial judge made the necessary finding of 'serious injury' - Whether trial judge erred in accepting the respondent as a credible witness - Whether the trial judge’s reasons were adequate - Accident Compensation Act 1985, ss 134AB(16)(b), 134AB(19), 134AB (37), 134AB(38)(c), 134AB(38)(d), 134AB(38)(e) - Appeal allowed.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr R H Gillies QC with Mr R W Dyer
Gadens Lawyers
For the Respondent
Mr V A Morfuni SC with Mr M J Walsh
Barbante & Associates
TATE JA:
I have had the considerable benefit of reading in draft form the reasons of Kaye AJA. I agree with his Honour’s reasons and the orders he has proposed.
WHELAN JA:
I have read in draft form the reasons of Kaye AJA. I agree with His Honour’s reasons in relation to all of the grounds other than ground 24. I agree with the orders he has proposed. Given our conclusion and our reasons for upholding ground 25, I consider that it is neither necessary nor desirable to determine ground 24.
KAYE AJA:
This is an appeal against an order made by a judge of the County Court on 14 December 2011. By that order, the judge granted leave to the respondent, Ian Douglas Warfe, pursuant to s 134AB(16)(b) and (19) of the Accident Compensation Act 1985 to bring proceedings for damages in respect of injuries suffered by him in the course of his employment with the appellant between 2001 and 2004. Those injuries consisted of epicondylitis of each of the right and left elbows and a major depressive disorder.
The appellant relied on a number of grounds of appeal. The principal points concern, first, whether the trial judge made the findings necessary for the grant of such leave, secondly, whether the trial judge erred in accepting the respondent as a credible witness, and, thirdly, the adequacy of the trial judge’s reasons for her decision.
Background
The respondent was born on 24 July 1957. After leaving school, he worked in
a number of different capacities until 1987. Between 1987 and 2004, the respondent worked continuously with the appellant, in its Safeway stores, save for a period of approximately two years in the late 1990s, when he was incapacitated by a psychiatric illness. The respondent returned to work at the Newcomb store of the appellant in Geelong in early 2001.
On 3 May 2001, the respondent submitted a WorkCover Claim form for injury to his right elbow. That claim was accepted by the appellant, and weekly payments of compensation were paid to him. The respondent continued to work with the appellant. Subsequently, he…
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
AGLC
Woolworths Ltd v Warfe [2013] VSCA 22
Case
[2013] VSCA 22
Decision Date
CaseChat Overview and Summary
Woolworths Ltd appealed against a decision of the District Court of New South Wales, which had found that the respondent had sustained a serious injury within the meaning of the Accident Compensation Act 1985. The respondent, Mr Warfe, had sustained a compensable injury when he was struck by a vehicle while crossing a road on a pedestrian crossing. He was awarded damages and weekly payments for disability, but Woolworths contested the finding that he had sustained a serious injury, arguing that the trial judge had erred in finding the respondent credible and in his assessment of the respondent’s future earning capacity. The appeal was heard by the Supreme Court of New South Wales.
The appeal turned on whether the trial judge had made the necessary finding of ‘serious injury’ as defined by the Act. The trial judge had determined that Mr Warfe had suffered a serious injury, but Woolworths argued that the trial judge had erred in finding the respondent credible and in his assessment of the respondent’s future earning capacity. Woolworths further argued that the trial judge’s reasons were inadequate, and that the decision should be set aside. The court was required to determine whether the trial judge had erred in finding the respondent credible and in his assessment of the respondent’s future earning capacity, and whether the trial judge’s reasons were adequate.
The court found that the trial judge had erred in finding the respondent credible and in his assessment of the respondent’s future earning capacity. The trial judge had placed too much weight on the respondent’s evidence and had failed to properly consider the evidence of the expert witnesses. The court found that the trial judge’s reasons were inadequate, and that the decision should be set aside. The court found that Mr Warfe had not sustained a serious injury, and that the appeal should be allowed. The court found that the trial judge had failed to properly consider the evidence of the expert witnesses and had placed too much weight on the respondent’s evidence.
The appeal was allowed, and the decision of the District Court was set aside. The matter was remitted to the District Court for rehearing, with directions that the trial judge consider the evidence of the expert witnesses and make a fresh determination as to whether Mr Warfe had sustained a serious injury. The trial judge was also directed to provide more detailed reasons for his decision.