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:

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’.

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.

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’.

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…

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

Case: [2020] VSCA 240
Decision Date: 17 September 2020

CaseChat Overview and Summary

In Belgrave Heights Christian School v Moore, the plaintiff, Moore, sought damages for injuries allegedly sustained while driving a school bus for the defendant, Belgrave Heights Christian School. Moore claimed the injuries occurred due to an accident that took place while he was in the course of his employment, driving the bus. The Transport Accident Commission issued a certificate that allowed Moore to bring proceedings for common law damages, leading to the dispute over the scope and effect of this certificate in the context of the plaintiff's claims. The primary legal issues revolved around whether Moore's injuries were indeed a result of a transport accident and if the certificate granted by the Transport Accident Commission permitted him to recover damages for injuries that predated the alleged accident. Additionally, the court had to consider the implications of Moore not obtaining leave to commence a proceeding under section 134AB of the Accident Compensation Act 1985 and the interaction between the Accident Compensation Act 1985 and the Transport Accident Act 1986.

The court examined the provisions of the relevant statutes, focusing on the interpretation of the certificate issued by the Transport Accident Commission and its effect on Moore's ability to pursue common law damages. It was determined that the certificate did not permit Moore to recover damages for injuries sustained prior to the transport accident. The court found that the certificate was limited to the transport accident and did not extend to pre-existing injuries or conditions. The decision in Kruisselbrink v Nationwide Maintenance Services Pty Ltd highlighted the need to carefully distinguish between the timing of injuries and the events leading up to the transport accident. Furthermore, the court applied the principles from Petkovski v Galletti, confirming that the certificate’s scope was restricted to the accident itself and not the preceding events. Consequently, the court held that Moore's claims for injuries that occurred before the transport accident were not covered by the certificate and thus, not actionable under the common law.

In light of the findings, the court dismissed Moore's claims for damages relating to injuries sustained before the transport accident. The certificate issued by the Transport Accident Commission did not permit such claims, and the failure to obtain leave to commence a proceeding under section 134AB of the Accident Compensation Act 1985 further precluded Moore from pursuing these claims. The final orders of the court reflected this conclusion, affirming that the plaintiff could only claim for damages directly attributable to the transport accident itself.

Orders