De Bono v Victorian WorkCover Authority

[2019] VSCA 85

Victorian Court of Appeal

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Interrogate

Catchwords

1. Accident Compensation
2. › Serious injury application
3. › Loss of earning capacity
4. › Whether loss of earning capacity consequences at least very considerable
5. › Whether worker suffered permanent loss of earning capacity of 40 per cent or more
6. › Relevance of failure to undertake rehabilitation or retraining
7. › Accident Compensation Act 1985 (Vic), ss 134AB(16)(b), (17), (38)(b), (c), (e), (f), (g)
1. Appeal
2. › Adequacy of reasons
3. › Whether trial judge's reasons disclosed path of reasoning
4. › Whether reasons enabled losing party to know basis upon which claim was rejected
5. › Matter remitted for rehearing
1. Practice and Procedure
2. › Judicial reasons
3. › Obligation to identify statutory requirements not established
4. › Obligation to analyse evidence by reference to relevant statutory provisions

Quick Take

Section 134AB(38)(g) of the Accident Compensation Act 1985 does not operate as a complete bar to establishing loss of earning capacity where a worker has failed to undertake rehabilitation or retraining; rather, it directs the Court to take into account the possibility of rehabilitation or retraining and what the worker would have been able to earn if reasonable attempts were made. A judge determining a serious injury application for pecuniary loss must identify which statutory requirement(s) the worker failed to establish and must analyse the evidence by reference to the relevant statutory provisions, so that the losing party can discern the basis upon which the claim was lost.