Kesper v Victorian WorkCover Authority

[2024] VSCA 237

Victorian Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Serious injury
3. › Leave to bring common law proceedings
4. › Pain and suffering consequences
5. › Whether fairly described as 'very considerable'
6. › Whether primary judge erred in refusing leave
7. › Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 325, 335
1. Appeal
2. › Standard of appellate review
3. › Correctness standard
4. › Serious injury applications
5. › Whether appellate court should afford 'deference' to primary judge's evaluative judgment
6. › No deference warranted beyond ordinary allowances for trial judge's advantages
1. Appeal
2. › Review of findings of fact
3. › Inferences from undisputed or established facts
4. › Appellate court in as good a position as trial judge
5. › Warren v Coombes principle

Quick Take

On appeal from a serious injury determination under the WIRC Act, the Court of Appeal applies the correctness standard and is not required to afford any special 'deference' to the County Court's evaluative judgment on whether the 'very considerable' test is satisfied. Where the primary judge's ultimate finding is not informed by impressions of credibility or reliability, the Court of Appeal is in as good a position as the primary judge to determine correctness. The Haden checklist of indicia is descriptive, not prescriptive, and cannot qualify the statutory language of s 325(2)(c).