Belgrave Heights Christian School v Moore

[2020] VSCA 240

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0009

BELGRAVE HEIGHTS CHRISTIAN SCHOOL	Applicant
v
DIANE MOORE	Respondent

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JUDGES:	BEACH, KAYE and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2020
DATE OF JUDGMENT:	17 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 240
JUDGMENT APPEALED FROM:	[2019] VCC 2078 (Judge Pillay)

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ACCIDENT COMPENSATION – Workplace injury – Injury allegedly resulting from driving a bus in the course of employment – Whether injury was a transport accident – Certificate consenting to the bringing of proceeding for common law damages granted by Transport Accident Commission – Effect and scope of the certificate – Whether certificate permitted worker to recover damages in respect of injury sustained before transport accident occurred – Effect on worker’s proceeding of not obtaining leave to commence a proceeding under s 134AB of Accident Compensation Act 1985 – Interaction between provisions of Accident Compensation Act 1985 and Transport Accident Act 1986 – Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260 discussed – Petkovski v Galletti [1994] 1 VR 436 applied – Accident Compensation Act 1985, s 134AB – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Mr B Jellis	Solicitor to the Transport Accident Commission
For the Respondent	Mr J P Gorton QC with Ms S Gold	Adviceline Injury Lawyers

BEACH JA

KAYE JA
SIFRIS JA:

1. Between 2005 and 2012, Diane Moore (‘the plaintiff’) was employed by Belgrave Heights Christian School (‘the defendant’) as a casual bus driver.  She currently has a claim for damages on foot against the defendant for injuries she alleges she sustained in the course of her employment as a result of being required to drive an old 45-seat bus that had a manual transmission and difficult brakes, which caused ‘severe jerking’.

1. The plaintiff’s claim against the defendant is that, while driving the bus, she was often thrust forward and then backwards in her seat;  she did not have an appropriate seatbelt;  the driver’s seat of the bus was poorly positioned in relation to the steering wheel;  the driver’s seat did not have a headrest;  and the bus was ‘generally non-ergonomic’.  On 13 August 2012, while driving the bus, the plaintiff says that she applied the brake and clutch simultaneously and, at that point, felt a sudden acute and excruciating pain in her lower back.

1. On 11 January 2018, the Transport Accident Commission (‘the TAC’), pursuant to s 93(4)(c)(ii) of the Transport Accident Act 1986 (‘the TA Act’), issued the plaintiff with a certificate consenting to the bringing of proceedings ‘for the recovery of damages in relation to injuries sustained by [the plaintiff] as a result of a transport accident which occurred on 13 August 2012’.

1. On 10 August 2018, the plaintiff filed a writ in the County Court claiming damages from the defendant in respect to the injuries she alleged she sustained ‘over the course of her employment … including 13 August 2012’, as a result of driving the bus.

1. On 10 April 2019, the defendant filed a defence in which it pleaded (in paragraphs 10 and 11) that the plaintiff was not entitled to bring a proceeding in respect of her work duties over the course of her employment with the defendant as she had not satisfied the serious injury requirements set out in s 134AB of the Accident Compensation Act 1985 (‘the AC Act’).

1. On 6 December 2019, an application to strike out paragraphs 10 and 11 of the defence was heard by Judge Pillay.  On 19 December 2019, his Honour ordered the paragraphs to be struck out.[1]

   [1]Moore v Belgrave Heights Christian School [2019] VCC 2078 (‘Reasons’).

1. The defendant now seeks leave to appeal against the judge’s order.  Its proposed grounds of appeal are as follows:

1.The judge erred in his construction of s 93 of the TA Act (and/or the certificate granted by the Transport Accident Commission on 11 January 2019 (Certificate)) by holding that by reason of the Certificate:

(i)The plaintiff was able to bring proceedings to recover damages for both injury sustained in the transport accident and for ‘connected injuries that led to the injury’;  and

(ii)The plaintiff was not therefore precluded by s 134AB of [the AC Act] from recovering damages for injury sustained in the course of her employment prior to the transport accident.

2.The learned trial judge erred in holding that the Certificate entitled the plaintiff to bring proceedings to recover damages for injuries:

(a)sustained in the course of her employment by the defendant;

(b)but not caused by a ‘transport accident’ within the meaning of s 93 of the TA Act.

3.Alternatively to grounds 1 and 2, the trial judge erred by striking out paragraphs [10] and [11] of the [defendant’s] defence on a summary basis:

(a)without making any factual finding (even on his Honour’s construction) concluding that the alleged work process injuries were ‘connected injuries that led to the injury’;

(b)where, in any event, it was not open to make any such factual finding without a trial.

Procedural background in greater detail

1. On 10 September 2012, the plaintiff lodged a WorkCover claim in relation to an injury to her lower back ‘experienced on 13 August 2012’, which was described as having occurred, ‘while driving the bus I experienced sharp lower back pain’.  The claim was initially denied by the defendant.  That decision was, however, subsequently set aside by an order of a magistrate made on 29 October 2014. 

1. On 23 June 2015, the plaintiff made a serious injury application under s 134AB(4) of the AC Act. The application was served on the defendant and the Victorian WorkCover Authority (‘the VWA’). There was then correspondence between the plaintiff’s solicitors and the VWA’s solicitors, in which the VWA’s solicitors asserted that the incident alleged on 13 August 2012 was a transport accident within the meaning of the TA Act. The solicitors for the plaintiff responded that the application also dealt with injuries suffered over the course of the plaintiff’s employment and therefore the application under the AC Act was appropriate.

1. On 20 October 2015, the VWA rejected the plaintiff’s serious injury application. On 2 November 2015, the plaintiff commenced a proceeding in the County Court seeking leave under s 134AB(16)(b) to commence common law proceedings to recover damages in respect of injuries sustained during the course of her employment with the defendant and in particular on or about 13 August 2012.

1. On 21 June 2016, the plaintiff’s solicitors served a serious injury application on the TAC under s 93 of the TA Act. In the application, it was asserted that the plaintiff was injured in the course of her employment on or about 13 August 2012 while she was driving a bus and had to apply the brake and clutch simultaneously which caused her to experience back pain.

1. On 21 September 2016, the TAC rejected the plaintiff’s application. There then followed further correspondence between the plaintiff’s solicitors and the TAC about, amongst other things, whether the incident alleged to have occurred on 13 August 2012 was a transport accident within the meaning of the TA Act.

1. On 2 May 2017, the plaintiff commenced a second proceeding in the County Court, this time against the TAC, seeking an order pursuant to s 93(4)(d) of the TA Act for leave to commence common law proceedings.

1. In support of her serious injury applications, the plaintiff relied upon an affidavit[2] in which she described the circumstances of her injury as follows:

My bus runs involved me driving one of the fleet of six buses at the school.  The fleet of buses varied in size and ranged between 29 and 45 seats.  The bus that I normally drove was an old 45-seater bus which had a manual transmission.  The brakes on this bus were slow to respond and when they did ‘kick in’, they were very sharp and caused a severe jerk.  When the brakes ‘kicked in’, I was often thrust forward and then backwards in my seat.  Furthermore, the bus did not have an appropriate seatbelt to properly retain and support me, and was generally non-ergonomic as it did not have a headrest and the driver’s seat of the bus was poorly positioned in relation to the steering wheel.  Prior to my injury, I had made a number of verbal complaints to the school regarding these problems.

…

I attribute my lower back injury to the problematic brakes and non-ergonomic setup of the bus that I was required to drive over the course of my employment.  In order to get my knees under the steering wheel to access the foot pedals, I had to sit back on the driver’s seat and have my legs over-extended while being constrained by the driver’s seat.

[2]Sworn 18 June 2015.

1. Both applications for leave to commence common law proceedings (the application under s 134AB(16)(b) of the AC Act, and the application under s 93(4)(d) of the TA Act) were listed for hearing on 5 February 2018. As we have already said, on 11 January 2018, the TAC issued the plaintiff with a certificate in writing consenting to the bringing of common law proceedings. The certificate provided:

The TAC, for the purposes of section 93 of the Transport Accident Act 1986, certifies in respect of Diane Moore that:

(a)The TAC has made the impairment determination referred to in section 93(4)(a) of the Act;

(b)The degree of impairment determined was less than 30 per centum;

(c)The TAC is satisfied that the claimed injury is a serious injury;  and

(d)Consent is given pursuant to section 93(4)(c) of the Act for Diane Moore to bring proceedings for the recovery of damages in relation to injury sustained by Diane Moore as a result of a transport accident which occurred on 13 August 2012.

1. Following the receipt of the TAC’s certificate, the hearing date of 5 February 2018 was vacated and consent orders were filed dismissing the two serious injury proceedings which had been commenced by the plaintiff.

The pleadings

1. The circumstances in which the plaintiff suffered injury are pleaded in paragraphs 8 to 11 of her statement of claim.  Omitting particulars, the plaintiff pleaded:

5.From November 2005, or alternatively prior to 13 August 2012, the defendant knew or should have known that the plaintiff;

(a)had previously suffered injury to her spine;  and/or

(b)was vulnerable to musculoskeletal injury to the spine;

caused or aggravated by her work duties as a bus driver with the defendant.

6.Throughout the course of her employment and in particular regularly from 2011, the plaintiff was required to drive a ‘Hino’ bus, which in 2011 was 26 years old.

7.Prior to 13 August 2012, the plaintiff notified the defendant that:

(a)she had difficulties driving the Hino bus;  and

(b)that the brakes on the bus were difficult to operate.

(The notification)

8.Despite the notification, the defendant:

(a) failed to successfully remedy the brake defect on the Hino bus;

(b)continued to require the plaintiff to drive the Hino bus.

9.On 13 August 2012 as part of her work duties in the course of her employment with the defendant:

(a)the plaintiff picked up and drove students to school on the morning school run;

(b)the plaintiff was required to drive students to a school camp at Trafalgar.  While on the return drive, the plaintiff felt acute pain in her lower back while depressing the clutch and the brake.

10.The work duties over the course of the plaintiff’s employment and in particular, on 13 August 2012, imposed strain on the plaintiff’s lumbar spine.

11.Over the course of her employment, and as a result of the work duties including 13 August 2012, the plaintiff suffered injury.

1. In particulars of the defendant’s alleged knowledge given under paragraph 5 of the statement of claim, the plaintiff alleged that she suffered injury on or about 14 November 2005 ‘after forcefully braking while driving a bus’, and that she made a WorkCover claim which was accepted.  She also alleged that she reported back complaints to employees of the defendant, including her supervisor.

1. In particulars given under paragraph 9 of the statement of claim, the plaintiff alleged that the morning school run was conducted on the bus about which she had made complaints in relation to difficulties with driving and difficulties with the operation of the brakes (described by the plaintiff as ‘the Hino bus’);  and the ‘school camp drive’ was conducted on a ‘Mitsubishi bus’ — a bus, about which, no specific allegations of defect appear to be made in the statement of claim.

1. While paragraph 10 refers to ‘the work duties over the course of the plaintiff’s employment’, we note that the expression ‘the work duties’ is not defined in the statement of claim.  Presumably, the expression in paragraph 10 gets its content from the allegations in paragraph 9.

1. In paragraph 12 of her statement of claim, the plaintiff alleges that her injuries were caused by the negligence of the defendant.  In addition to particulars of negligence alleging that the defendant failed to provide a safe system of work, failed to provide a safe place of work, failed to provide safe equipment, failed to undertake risk assessments, failed to maintain buses used by it, and failed to comply with the provisions of the Occupational Health and Safety Act 2004 and regulations made thereunder, the plaintiff made the following more specific allegations:

(d)Requiring or continuing to require the plaintiff to regularly drive the Hino bus, which:

(i)had defective or dysfunctional brakes;

(ii)had a poor ergonomic setup in respect of the driver’s seat;

(iii)exceeded the reasonable maximum age of a commercial vehicle;

(iv)and was the subject of [a] notification and complaints by the plaintiff —

and further in circumstances where the defendant knew or should have known that the plaintiff was vulnerable to musculoskeletal injury to the spine.

(e)Failing to undertake any or any adequate risk assessment or audit of the buses used by the employees of the defendant to ascertain whether the buses were safe for the purposes of regular commercial usage; 

…

(g)On 13 August 2012, requiring the plaintiff to perform excessive driving duties without sufficient breaks;

(h)Failing to maintain the buses used by the defendant, adequately or at all;

1. In paragraph 13, the plaintiff alleges that her injuries were also caused by the defendant failing to comply with statutory duties imposed upon it by regulations made under the Occupational Health and Safety Act.

1. In its defence, the defendant admits that on 13 August 2012, as part of her work duties in the course of her employment, the plaintiff picked up and drove students to school on the morning school run;  and was required to drive students to a school camp at Trafalgar.  It also admits that the plaintiff suffered an injury on 13 August 2012 (the nature and extent of which is not admitted).  It denies, however, the plaintiff’s allegations of negligence and breach of statutory duty. 

1. In paragraphs 10 and 11 (the paragraphs that were struck out by the judge), the defendant alleged, in identical terms in both paragraphs, that:

… the plaintiff is not entitled to bring a proceeding in respect of her work duties over the course of her employment with the defendant as the plaintiff has not satisfied the serious injury requirements set out in section 134AB of [the AC Act].

The judge’s reasons

1. The judge commenced his reasons for judgment by observing that:

Behind this application is a debate about how a worker who suffers injury throughout the course of employment involving a motor vehicle can bring a common law claim.[3]

[3]Reasons [1].

1. After setting out relevant background facts and identifying the relevant pleadings, the judge encapsulated the parties’ primary arguments as follows:

·The plaintiff submitted that the grant of a serious injury certificate ‘simply opens a gateway to allow the plaintiff to pursue a cause of action’.[4]  The serious injury certificate attached to the injury, rather than any particular cause of action.[5]

·To the contrary, the defendant submitted that the TA Act was concerned with compensation flowing from transport accidents. A transport accident was defined to mean an incident, and this necessarily focused attention on a single event arising on one day and the injury sustained as a result of that incident.[6]

[4]Ibid [20].

[5]Ibid.

[6]Ibid [21].

1. The judge then posed the question of whether the grant of a serious injury certificate under s 93 of the TA Act attached ‘to the incident or the injury?’ The judge answered that question favourably to the plaintiff, saying that he considered that the grant of the certificate attached to the injury, and as a result left open to the plaintiff ‘to prove in an ordinarily formulated cause of action’[7] how that injury arose. 

   [7]Ibid [22].

1. The judge said that the scope of the common law right given to an injured person upon the grant of a certificate was an ‘unfettered right’.[8]  Relying upon Petkovski v Galletti,[9] the judge then said that a plaintiff can only recover against a defendant for the damage the defendant caused, and to do so in the present circumstances must mean:

that the grant of the serious injury certificate allows the plaintiff to proceed against the defendant in respect of injury throughout [sic] the course of employment. To read s 93(4) as confining the plaintiff to a day on which injury accrued, and work duties only on that day, is to add a new element to the plaintiff’s cause of action: a limitation on the ability of the plaintiff as to what damage is claimable against the defendant by reason of the terms of the serious injury certificate.[10]

[8]Ibid [26].

[9][1994] 1 VR 436 (‘Petkovski’).

[10]Reasons [26].

1. Such a confining of the plaintiff’s claim was, the judge said,[11] contrary to what this Court said in Swannell v Farmer,[12] wherein the Court said that:

[Section 93] contemplates a cause of action consisting only of its common law elements and is concerned with imposing a barrier to enforcing that cause of action rather than creating a new, more complex cause of action.[13]

[11]Ibid [27]–[28].

[12](1999) 1 VR 299 (‘Swannell’).

[13]Ibid 309 [31].

1. The judge rejected the defendant’s submissions, saying that they would lead to an anomalous result.  As the judge put it:

[I]f the defendant’s position in this case were accepted, it would lead to an anomalous result:  while the defendant could adduce evidence to disentangle and reduce the plaintiff’s claim, the plaintiff could not lead evidence of wrongdoing on the defendant’s behalf said to worsen or bring about the ultimate injury.  In short, the plaintiff could argue about the straw that broke the camel’s back, but not the load placed there before, that made that last straw so critical.[14]

[14]Reasons [27].

1. Having concluded the issue in favour of the plaintiff, the judge rejected a submission by the defendant that he should not strike out paragraphs 10 and 11 of the defence.  In rejecting that submission, the judge said that the evidence ‘almost unanimously supported the plaintiff’s contention that she sustained injury throughout the course of employment and also specifically on 13 August 2012’.  Thus, to the extent factual findings were required, they did not appear to the judge to be in contest.[15]  Relying upon the judgment of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[16] the judge said that it was preferable to deal with the issues that were before him prior to trial.[17]  As the judge put it:

It [striking out the impugned paragraphs of the defence] narrows the issues in dispute, which is in keeping with the aims of the Civil Procedure Act 2010, but also has significant practical effect — on the scope of discovery, interrogation, witness evidence and expert liability material.[18]

[15]Ibid [37].

[16][2010] VSC 260 (‘Kruisselbrink’).

[17]Reasons [37].

[18]Ibid.

Parties’ contentions

1. The defendant argued grounds 1 and 2 together, contending that the judge erred in his construction of s 93 of the TA Act. The defendant submitted that both the prohibition in s 93(1) and the consent of the TAC under s 93(4), apply only in respect of an injury sustained as a result of a ‘transport accident’ — being an ‘incident directly caused by the driving of a motor car or a motor vehicle’. Injury sustained in the course of employment, other than in a transport accident, remains, it was submitted, subject to the prohibition, and serious injury gateways, provided for in the AC Act. In support of these submissions, the defendant made the following points:

(1)The construction adopted by the judge was contrary to the words of s 93, which operate with respect to injury sustained ‘as a result of a transport accident’. There must be an ‘incident’ rather than a ‘myriad of events over the course of many journeys’. Moreover, the requisite injury is the injury that occurred as a result of the transport accident not, as the judge found, an injury that encompassed ‘connected injuries that led to the injury’.[19]

(2)The context and purpose of the TA Act are concerned with the consequences of a transport accident. The judge’s decision, in effect, operated to extend the consent under the certificate to include injury that was not sustained in a transport accident.

(3)The judge wrongly concluded that the defendant’s construction of s 93 added an element to the plaintiff’s cause of action.[20]  More fundamentally, by focusing on the consequences of the judge’s preferred construction, his Honour fell into the error of approaching the task of statutory construction ‘by reference to what a judge might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation’.[21]

[19]Cf Reasons [31].

[20]Cf Reasons [26].

[21]See Deal v Kodakkathanath (2016) 258 CLR 281, 295 [37] (‘Deal’).

1. In relation to ground 3, the defendant submitted that there was no occasion for the judge to make any factual findings and, without the facts having been found, the impugned paragraphs in the defendant’s defence could not be summarily struck out. 

1. In response, the plaintiff submitted that, read properly and in context, the certificate issued by the TAC was broad enough to allow her to rely on the series of stressors she suffered while driving that culminated in the episode of acute pain that she suffered on 13 August 2012.  Each episode of stress was submitted to be a potential transport accident.  Alternatively, it was submitted that the series of episodes of stress that led up to the 13 August 2012 episode, which were caused in ‘like circumstances’, ‘may together be considered to be “an incident” for the purposes of the statutory definition’.

1. Next, the plaintiff submitted that the restrictions on bringing proceedings for common law damages ‘are only gateways and do not restrict common law actions once accessed’.

1. Then, relying upon decisions concerning the provisions of the AC Act,[22] the plaintiff submitted that once her injury had been identified as a serious injury (and consent given to the commencement of a common law proceeding) she was then permitted to present a case that the injury so identified was also sustained ‘as a result of numerous other insults sustained while driving a vehicle’.  The plaintiff submitted that she was able to put such a case because she was ‘still only seeking damages for the injury that had been assessed as being serious’.

   [22]Kruisselbrink being one of these.

1. The plaintiff then submitted that the material put before the TAC in her serious injury application made it clear that her case was ‘that incapacity emerged following an insult on 13 August 2012, but that its emergence was also contributed to by many insults over time in the course of her driving’. 

1. Next, the plaintiff submitted that the granting of leave to commence common law proceedings by reference to the date at which the plaintiff’s incapacity emerged was also consistent with the approach taken in gradual process injury claims in the area of workers’ compensation.  In support of this contention, the plaintiff relied upon decisions such as Selvage v Charles Burrell & Sons,[23] Fitzsimons v Ford Motor Co Ltd,[24] Coates v Commissioner for Railways[25] and Hawkins v Commonwealth.[26] 

   [23][1921] 1 KB 355 (‘Selvage’).

   [24][1946] 1 All ER 429 (‘Fitzsimons’).

   [25](1963) 81 WN (Pt 1) (NSW) 314 (‘Coates’).

   [26](1966) 166 CLR 159 (‘Hawkins’).

1. Additionally, the plaintiff relied upon s 3(3)(c) of the TA Act in support of an argument that in order to come within s 93 of the TA Act it was not necessary that there be any ‘incident’ identified, as long as the serious injury was ‘directly caused by the driving of a motor vehicle’.

1. Finally, in respect of grounds 1 and 2, the plaintiff submitted that the defendant’s contentions would lead to ‘unintended and unfair results’.  These included:

·The plaintiff in the present case being obliged to have sought leave to commence proceedings of each jolting incident she suffered during the course of her employment;  alternatively, to seek leave from both the VWA and the TAC concurrently and then to commence proceedings pursuant to two certificates under two different statutory regimes.

·The defendant being able to argue at trial that the plaintiff’s damages should be reduced by reason of the fact that she had a fragile back caused by its negligence prior to 13 August 2012, which had the capacity to result in the plaintiff being denied fair compensation notwithstanding that she had established a negligently inflicted serious injury (thus the defendant would be protected from the consequences of its own negligence).

1. In relation to ground 3, the plaintiff submitted that the judge was correct to strike out the relevant paragraphs of the defence, ‘as they concern the issue as to the scope of the case that [the plaintiff] could present and depend on matters of construction and allegation, rather than of concluded fact’.

Analysis

1. The plaintiff is a worker who is entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, her employment between 2005 and 2012. Her entitlement to claim common law damages in respect of that injury is therefore governed by ss 134AA and 134AB of the AC Act. Those provisions permit the plaintiff to commence common law proceedings:

(a) in accordance with the TA Act and specified subsections of s 134AB of the AC Act, if the proceeding is in respect of an injury arising out of a transport accident within the meaning of the TA Act; or

(b) as permitted by and in accordance with s 134AB of the AC Act.

1. Section 93 of the TA Act commences in sub-s (1) by prohibiting a person from recovering any damages in proceedings in respect of the injury or death of a person ‘as a result of a transport accident’. The expression ‘transport accident’ is defined in s 3(1) of the TA Act to mean:

an incident directly caused by the driving of a motor car or a motor vehicle, a railway train or a tram;

1. The succeeding subsections of s 93 of the TA Act then permit a person who is injured as a result of a transport accident to recover common law damages in respect of the injury if the serious injury requirements of the section are met.

1. The focuses of s 93 of the TA Act and s 134AB of the AC Act are different. Section 93 of the TA Act is concerned with the ability of an injured person to recover damages in a proceeding in respect of an injury that is a result of a transport accident. The first step in that process is to identify the transport accident, before identifying the injury said to have resulted. The focus in s 93 is on an injury that results from a transport accident — being a specified incident directly caused by the driving of a relevant vehicle.

1. On the other hand, s 134AB focuses on any injury arising out of or in the course of, or due to the nature of, employment — which might be the whole of employment, or some particular aspects of employment, or some specified incident or incidents, or some gradual process injury (to identify but a few examples).

1. The plaintiff’s claim against the defendant is essentially a gradual process injury claim. She alleges that as a result of being exposed to multiple jolts as a result of being required to drive a bus, which was unsafe by reason of its age and condition, she sustained a serious injury to her lower back. In such circumstances, her solicitors correctly made her initial serious injury application under s 134AB of the AC Act.

1. The case became more complex when the solicitors for the VWA asserted that the incident of acute pain suffered by the plaintiff on 13 August 2012 was itself a transport accident.  Having regard to the fact that the plaintiff was driving a Mitsubishi bus (the condition of which does not appear to be the subject of any complaint by the plaintiff), rather than the allegedly inappropriate Hino bus, it may be debated whether whatever injury the plaintiff suffered at that time was as a result of an incident directly caused by the driving of that bus;  alternatively, was a serious injury, having regard to the likely condition of the plaintiff’s back immediately prior to 13 August 2012.  As that issue was not the subject of full argument before us, however, it is not appropriate for us to consider it further.

1. What is plain from both the text and context of s 93 of the TA Act is that a proceeding brought in accordance with its provisions is one for the recovery of damages in respect of an injury that resulted from a transport accident. A plaintiff in such a proceeding cannot claim damages for any injury suffered before the transport accident occurred. So much has been the basis of every decision of this Court, concerning the operation and scope of s 93 of the TA Act, since Petkovski was decided.

1. The plaintiff submitted that she should be able to include the injuries she sustained prior to 13 August 2012 and which were caused by the driving of the bus between 2005 and 2012, because otherwise she would be required to take the inconvenient step of having to seek leave to commence proceedings in respect of each jolting incident that contributed to her injury. The fallacy in that argument is that, again, neither the text nor context of s 93 of the TA Act (or the TA Act more broadly) permits an injured person to combine the effects of multiple transport accidents and to sue in respect of an injury said to have resulted from the totality of those transport accidents. While an injured person may seek leave to commence proceedings in respect of more than one transport accident, the injury resulting from each accident must be separately identified, in accordance with the principles first stated in Petkovski, and then a determination must be made, in respect of each identified injury, whether that injury is serious within the meaning of the TA Act.

1. While the course suggested by the plaintiff of combining the effects of multiple transport accidents might appear convenient in the present case where the one defendant is alleged to be responsible for the multiple transport accidents, one only has to posit the case of a plaintiff involved in a series of minor whiplash incidents with drivers (defendants) to see that the course proposed by the plaintiff is not permitted by the TA Act, and contrary to its purpose of prohibiting common law claims being made in respect of transport accidents that result in injuries that are not serious. Again, the fact that the TA Act does not permit a plaintiff to combine transport accidents in an attempt to produce a serious injury underlies the basis of all of this Court’s decisions in this area since Petkovski.[27]

   [27]See, eg, Rowe v Transport Accident Commission [2017] VSCA 377, [82]–[86].

1. Perhaps more fundamentally, the present case does not appear to us to be one of multiple transport accidents (involving a series of incidents) — but rather one where the plaintiff claims to have injured her back because each day she had to endure a series of strains whenever she drove the Hino bus or applied its brakes.  The scenario posited by the plaintiff of a requirement to make multiple serious injury applications does not appear to us to have any great relevance to the plaintiff’s claim as currently described and formulated by her.

1. The plaintiff submitted that all of the driving of the bus during the course of her employment that contributed to her suffering injury, constituted an incident directly caused by the driving of the bus, and was thus properly to be viewed as a transport accident that occurred over the months and years of her employment. That submission must also be rejected. In truth, the submission is no more than an attempt to combine the effects of a multitude of different incidents. It is not apposite to describe as an incident multiple different events that have occurred over a period of years. Again, nothing in the text, context or purpose of the TA Act supports such a construction.

1. To the contrary, an examination of the whole of the TA Act in context shows that a transport accident is an incident that occurs on a particular date and in circumstances that might fairly be described as an ‘incident’ as that word is used in its common and ordinary meaning. For example:

·Section 34 refers to the Act applying in relation to transport accidents that occur on or after the day on which the section came into operation, and not applying to or in relation to a transport accident that occurred before that day.

·Sections 40 to 41 contain provisions limiting or excluding compensation if certain matters are established as having happened ‘at the time of the transport accident’ (eg, the commission of a relevant offence by the injured person[28] or the taking part in an organised motor vehicle race or speed trial).

·In contrast, s 94, which makes the TAC liable to indemnify the owner or driver of a vehicle in respect of an injury caused by or arising out of the use of the vehicle, is not limited to the happening of a transport accident or some specific incident or date.

[28]For example, ss 318(1) and 319(1) of the Crimes Act 1958 (culpable driving and dangerous driving causing death or serious injury).

1. The plaintiff’s reliance upon decisions like Selvage, Fitzsimons, Coates and Hawkins is, with respect, misplaced. The fact that in different statutory contexts a gradual process injury claim contemplated by the relevant statute might be viewed as giving rise to a specified injury on a particular date, does not assist in the present statutory context (the TA Act). Again, when one examines the text, context and purpose of the TA Act one finds nothing supportive of the plaintiff’s contentions on this issue.

1. To the extent that the plaintiff submitted that s 3(3)(c) of the TA Act was of assistance in resolving the current issue in dispute between the parties, that submission must also be rejected. Section 3(3)(c) of the TA Act is a definitional section, relevantly providing that:

a reference to an injury … as a result of … a transport accident … is a reference to an injury … directly caused by the driving of a motor vehicle … .

1. That section makes clear the context in which the words ‘injury as a result of a transport accident’ and cognate expressions are used throughout the TA Act. It does not, however, modify the definition of ‘transport accident’, or obviate the requirement for an applicant under s 93 of the TA Act to establish the existence of an injury as a result of an incident directly caused by the driving of a motor vehicle.

1. Moreover, the plaintiff’s argument takes no account of s 3(3)(a) of the TA Act, which relevantly provides:

a reference to an injury … is a reference to an injury … caused by a transport accident … ;

1. Thus, if s 3(3)(c) were to have any effect that changed the meaning or operation of another section of the TA Act (s 93 as is contended for by the plaintiff), s 3(3)(a) would also have operation in relation to s 3(3)(c), so that the reference to the word ‘injury’ in s 3(3)(c) was a reference to an injury caused by a transport accident — an incident directly caused by the driving of a relevant vehicle (re-importing the requirement for an incident, if indeed it had been removed by s 3(3)(c)).

1. Read in context, the purpose of s 3(3) of the TA Act is to limit what might otherwise be the use of more general words in later sections of the Act (including s 93) — that is, confining references to general words like injury so that they apply only to the subject matter of the TA Act (transport accidents and injuries that result therefrom).

Kruisselbrink v Nationwide Maintenance Services Pty Ltd

1. The plaintiff placed considerable reliance upon Kruisselbrink in support of her submission that the consent to the commencement of common law proceedings, given by the TAC in the granting of the certificate under s 93(4)(c)(ii) of the TA Act, permitted her to pursue her pleaded causes of action. In the circumstances, it is necessary to look more closely at Kruisselbrink. 

1. Kruisselbrink was a proceeding brought by a worker against his employer pursuant to s 134AB of the AC Act. At the commencement of the trial, the plaintiff (Mr Kruisselbrink) sought to amend his statement of claim. The defendant contended that the amendment sought was wider than that to which consent had been given in a certificate issued pursuant to s 134AB(16)(a)(ii) of the AC Act.[29]

   [29]Section 134AB(16)(a)(ii) is the AC Act’s equivalent of s 93(4)(c)(ii) of the TA Act.

1. The certificate issued in Kruisselbrink was, as the trial judge (J Forrest J) observed, ‘patently wrong’.[30] First, it was dated on a date some months prior to the application to which it purported to relate. More importantly, it expressed the satisfaction of the authorised agent of the VWA to the proposition that injuries sustained on 5 May 2005 by Mr Kruisselbrink, being a date on which he did not attend work, were serious within the meaning of the AC Act, and gave consent to the bringing of proceedings ‘for recovery of pain and suffering and pecuniary loss damages as a result of injuries sustained on 5 May 2005’ (a date on which he patently did not suffer injury).[31]

   [30]Kruisselbrink [2010] VSC 260, [39].

   [31]Ibid [38].

1. The amendment sought by Mr Kruisselbrink to his statement of claim involved pleading an injury that occurred in the course of employment between 2001 and May 2005.  The defendant contended that any amendment that might be permitted should be confined to the pleading of a specific incident on 4 May 2005.[32]  It is not entirely clear why the defendant referred to 4 May 2005, when the certificate referred to 5 May 2005.  It may be that 4 May 2005 was the date upon which Mr Kruisselbrink did attend work, which was closest to the date in the certificate.

   [32]Ibid [23].

1. After analysing a number of decisions dealing with s 134AB of the AC Act, and its precursor s 135A, including Barwon Spinners v Podolak,[33] Papercorp Pty Ltd v Nicolaou,[34] Brambles v Wail,[35] Ronchi v Alcoa Portland Aluminium Pty Ltd,[36] and Harvey v Methodist Ladies College,[37] J Forrest J concluded that it is the injury which is the focus of a grant of leave under s 134AB(16) of the AC Act.[38]  As his Honour then put it:

Provided the events alleged to be productive of the serious injury can be related to the employment (ie compensable injury) and it occurred as a result of work after 20 October 1999 then the claim is, at least at the interlocutory stage, tenable unless the employer establishes that there is no basis for linking the serious injury to the work activities.[39]

[33](2005) 14 VR 622.

[34][2006] VSCA 143.

[35][2002] VSCA 150 (while this case is reported at (2002) 5 VR 169, the relevant section of the judgment dealing with the issues the subject of this proceeding were omitted from the version published in the Victorian Reports).

[36][2007] VSC 340.

[37][2008] VSC 425 (‘Harvey’).

[38]Kruisselbrink [2010] VSC 260, [56].

[39]Ibid. The reference to 20 October 1999 by his Honour is a reference to the commencement date of s 134AB of the AC Act.

1. J Forrest J described the granting of a certificate by the VWA specifying an injury occurring on a particular day as being ‘a convenient way of identifying the injury which is considered to be a serious injury’.[40]  His Honour said that, in doing so however, the certificate could not ‘confine at [that] stage the worker to a specific work activity which is productive of the injury’.[41]  His Honour then identified five propositions which he drew from the authorities to which he had referred:

(1)By the grant of a certificate a worker will have established that he or she has sustained compensable injury and that such injury is a serious injury.  The existence of a serious injury permits the court to entertain the worker’s common law claim for damages;

(2)The determination of the Authority that an injury is serious, relates to the injury alone;  the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999;

(3)A worker can only, in the common law claim, in establishing liability on the part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;

(4)Where an issue at an interlocutory stage arises concerning the effect of a certificate and the ability of the worker to maintain his or her common law claim or a suggested limit on the ambit of that claim then in determining whether part or all of the claim is competent, a court is entitled to look at the material provided to the Authority as part of the s 134AB application;

(5)An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that — interlocutory, not final.  An order striking out part or all of a worker’s common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself.  Similarly, in the case of amendment, absent some other consideration (such as set out in Aon Risk Services Australia Ltd v Australian National University), unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.[42]

[40]Ibid [62].

[41]Ibid.

[42]Ibid [63] (citation omitted).

1. The correctness of these propositions so far as they apply to s 134AB of the AC Act (and its precursor, s 135A) is not in dispute. They cannot, however, be extrapolated so as to apply with equal force in respect to the different statutory scheme created by s 93 of the TA Act. The propositions derived by J Forrest J owe their existence to the specific terms of the relevant sections in the AC Act and the fact that it is the work related injury that is the focus of the grant of leave under the AC Act.[43]  At the risk of repetition, the Kruisselbrink line of authority is distinguishable from the present circumstances because the focus in the AC Act is upon injury that merely needs only to be one of ‘in respect of’, ‘arising out of’, ‘in the course of’, or ‘due to the nature of’, employment — whereas under s 93 of the TA Act, the focus is on an injury ‘as a result of a transport accident’ (ie, an incident directly caused by the driving of a relevant vehicle).

   [43]Harvey [2008] VSC 425, [11]–[12]; Kruisselbrink [2010] VSC 260, [56].

1. While the analysis in Kruisselbrink would support an argument in a s 93 case that a certificate that erroneously states the date of the only transport accident that the injured person was relevantly involved in would ordinarily be construed as applying to that transport accident, the provisions of s 93 (with their emphasis on a ‘transport accident’ as defined) would make it difficult to further extrapolate the principles identified in Kruisselbrink to s 93 cases. More importantly, one could not extrapolate those principles so as to construe a certificate given under s 93(4)(c)(ii) as granting consent to the commencement of a proceeding that the terms of s 93 do not permit to be commenced.

1. It is not to the point to say that it works an unfairness on the plaintiff to permit the defendant to argue that the plaintiff’s damages should be reduced because of injury she suffered as a result of its negligence prior to 13 August 2012. That argument does not permit s 93 of the TA Act or the certificate issued by the TAC to be construed otherwise than in accordance with principle. The answer to the suggested unfairness is that the plaintiff had rights to seek leave to commence a proceeding under s 134AB in which the defendant would not be able to mount the argument she fears will be mounted if the proceeding remains one brought pursuant to s 93 of the TA Act and she cannot include injuries suffered prior to 13 August 2012. With respect, there is force in the defendant’s submission that the judge fell into error by approaching the task of statutory construction (of s 93 of the TA Act) by reference to what he regarded as desirable policy, imputing that to the TA Act, and then characterising that as its purpose.[44]

   [44]Deal (2016) 258 CLR 281, 295 [37].

1. The judge was correct to say that once a serious injury gateway had been accessed then the traditional elements of the cause of action and nothing more need be established, and that s 93 does not add an additional element to an injured person’s cause of action. To the extent, however, that the judge concluded that once the gateway had been accessed then the plaintiff was entitled to plead a cause of action that went beyond one that related to the incident constituting the transport accident that occurred on 13 August 2012, he erred. Nothing in Swannell[45] permitted such an approach.

   [45](1999) 1 VR 299.

1. To the extent that the plaintiff submitted that acceptance of the defendant’s submissions could give rise to the possibility of two proceedings being conducted under different statutory regimes, and that this would create insuperable difficulties, we reject that submission. Properly analysed, the cause of action the plaintiff wishes to rely upon is one that is governed by s 134AB of the AC Act. We are unable to see how the fact that the plaintiff has leave under s 93 of the TA Act to commence a proceeding in respect of a transport accident that occurred on 13 August 2012, creates any great difficulty. If the plaintiff chose to run proceedings concurrently under the TA Act and the AC Act, it may be that she would have to elect at some point as to which remedy she wishes to pursue so as to avoid being compensated twice in respect of the same injury. Such a case may not be suitable for trial by jury, but we are unable to see why an experienced trial judge would not be able to resolve matters appropriately. Damages would fall to be assessed in accordance with settled principles, and the outcome of each proceeding would be governed by the relevant statutory provisions that had application — with as we say the possibility of the plaintiff having to elect between proceedings seeking to recover the same amounts, or to account for some of the damages awarded in one proceeding in the assessment of damages in the other proceeding.

1. It follows from what we have said above that grounds 1 and 2 are made out. We would also uphold ground 3. It seems to us that the plaintiff’s statement of claim is pleaded in terms that are sufficiently general to permit her to rely on work related causes of injury that do not fall within the definition of a transport accident. Striking out paragraphs 10 and 11 of the defendant’s defence in this case, before evidence was called, was not appropriate. A more appropriate course may have been to determine as a preliminary issue the scope of the s 93(4)(c)(ii) certificate and precisely what cause or causes of action it permitted the plaintiff to pursue at trial.

The future conduct of these proceedings

1. Regrettable as it is, the judge’s order will have to be set aside.  The plaintiff, who has been accepted by the TAC to have a serious injury, currently only has leave to pursue a common law proceeding arising out of the injury she sustained when she experienced acute pain on 13 August 2012.  That is likely to be a significantly more limited claim than the plaintiff should be able to bring in accordance with the relevant legislative provisions if she has a serious injury as defined.

1. Specifically, when one has regard to the likelihood that it was the driving of the Hino bus before the plaintiff suffered the acute attack of pain on 13 August 2012 which caused injury, and that she was driving a different bus at the time of the acute episode, it seems unlikely that the plaintiff could recover substantial damages in the current proceeding (particularly given the defendant’s ability, in the proceeding as presently constituted, to argue that the events of 13 August 2012 were merely the ‘straw that broke the camel’s back’ and the plaintiff cannot recover damages for any injury caused by driving before 13 August 2012).

1. There seems little doubt from the material filed in this case that the plaintiff has a serious injury within the meaning of the definition of that expression in both s 93 of the TA Act and s 134AB of the AC Act. Indeed, when we raised this with senior counsel for the defendant (who was instructed by the TAC in this proceeding) he said that his client accepted that the plaintiff’s injury is a serious injury and that it would not oppose leave being granted under s 134AB of the AC Act (remembering that the TAC has a liability to indemnify the owner of a registered motor vehicle in respect of any injury caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory).[46]  That was a responsible concession made by a model litigant.

   [46]See s 94 of the TA Act.

1. The plaintiff’s application under s 134AB(16)(b) for leave to commence a proceeding in accordance with s 134AB was dismissed without an adjudication on the merits. While we do not see any real likelihood in the VWA contesting the proposition that the plaintiff has a serious injury within the meaning of s 134AB of the AC Act (particularly having regard to what we were told was the course that would be taken by the TAC on that issue), in the event that there is a dispute about whether leave should be granted (or a certificate issued) under s 134AB, we can see no reason why the plaintiff’s original s 134AB(16)(b) application could not be relisted for hearing and determination.

1. To that end, we note that the predicament the plaintiff currently finds herself in has been, at least in part, contributed to by the advices to her from, and approaches taken by or on behalf of, the TAC and the VWA.  In particular, it is clear that the injury sustained by the plaintiff, as pleaded in her statement of claim, and as described in her affidavit, was due to the recurrent strains to which her back was subjected when driving the Hino bus over a number of years in the course of her employment with the defendant.  That injury arose out of or was due to the nature of her employment with the defendant.  It is not the result of any transport accident.  In those circumstances, VWA’s solicitors were incorrect to assert that the injury, complained of by the plaintiff, was the result of a transport accident.  Similarly, it is difficult to understand on what basis the TAC issued the certificate to the plaintiff in respect injury ‘as a result of a transport accident which occurred on 13 August 2012’.  It is clear that whatever strains were imposed the plaintiff’s lower back on that one day, they were very much the ‘last straw’.  It is difficult to see how the issue of the certificate by the TAC can be reconciled with the principles stated in cases such as Petkovski.  In those circumstances, it would be hoped that if the plaintiff sought to reinstate the serious injury application, that she served on the defendant and the VWA, there would be no opposition to that course, and that the VWA, as a model litigant, would give appropriate weight to the assessment already made by TAC that the injury sustained by the plaintiff is a serious injury.

Conclusion

1. Leave to appeal will be granted, the appeal will be allowed, and the orders made in the County Court on 19 December 2019 will be set aside.

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