Blackney v Alcoa Portland Aluminium Pty Ltd (Ruling)
[2020] VCC 2000
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04884
| STEVEN NEIL BLACKNEY | Plaintiff |
| v | |
| ALCOA PORTLAND ALUMINIUM PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2020 (the defendant to file and serve written submissions by close of business on Friday, 7 August 2020, and thereafter the plaintiff to file and serve written submissions by close of business on Friday, 14 August 2020) | |
DATE OF RULING: | 17 December 2020 | |
CASE MAY BE CITED AS: | Blackney v Alcoa Portland Aluminium Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2000 | |
RULING
---
Subject: ACCIDENT COMPENSATION
Catchwords: The limits of the grant of leave under s134AB(16)(b) of the Act
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Blackney v Alcoa Portland Aluminium Pty Ltd [2017] VCC 906; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Brambles Ltd v Wail (2002) 5 VR 169; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; Belgrave Heights Christian School v Moore [2020] VSCA 240; Harvey v Methodist Ladies College [2008] VSC 425; O’Neill v TD Williamson Australia Pty Ltd [2008] VSC 398; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Petkovski v Galletti [1994] 1 VR 436; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Morrow with Ms F Crock | Slater & Gordon |
| For the Defendant | Mr S Smith QC with Ms K Manning | Hunt & Hunt |
HIS HONOUR:
1 This Ruling concerns what constraints, if any, were imposed upon the plaintiff’s common law claim for damages by reason of the grant of leave to bring common law proceedings made by his Honour Judge Dyer on 5 July 2017.
Background
2 The plaintiff is a sixty-four-year-old man who commenced employment with the defendant in 1980, performing labouring duties – in particular, as a setter and operator. He continued working – albeit on lighter, alternative duties – up until August 2014, when the plant was closed down and he was made redundant.
3 Over the years, the plaintiff suffered injuries to both shoulders, which it is alleged were caused by the heavy and repetitive work that he was performing, and also, on 11 March 2012, he suffered a specific injury to his right shoulder when he fell at work.
4 The plaintiff applied for a “serious injury”, in respect of both shoulders, ultimately culminating in a serious injury application before his Honour Judge Dyer on 12 and 13 December 2016. The application was for leave to claim common law damages for pain and suffering and pecuniary loss in respect to injuries to both shoulders or, alternatively, either of them.
5 Judge Dyer handed down his Judgment[1] on 5 July 2017. He granted leave to the plaintiff to claim common law damages for pecuniary loss for injury to his right shoulder[2] in accordance with the provisions of s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”). Given such a finding in relation to pecuniary loss, there was no requirement for the Court to separately examine any entitlement in respect of pain and suffering.[3]
[1]Blackney v Alcoa Portland Aluminium Pty Ltd [2017] VCC 906
[2]During the course of submissions, counsel for the plaintiff limited his claim to a serious injury in relation to the “right shoulder”
[3]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [63]-[64]
6 On or about 18 October 2017, the plaintiff issued common law proceedings against the defendant alleging that the defendant breached its duty of care as an employer of the plaintiff and such breach was a cause of bilateral shoulder injuries, in particular, and also other injuries to the neck, back, hip and left knee.
7 In particular, paragraphs 4 and 5 of the Statement of Claim allege:
“4.In the course of his employment at the premises, the plaintiff was required to engage in excessively heavy, repetitive and awkward work as a labourer and thus while so engaged the plaintiff suffered injury (‘the work’).
5.Further, on or about 11 March 2012, in the course of his employment, the plaintiff suffered injury when he tripped in a hole and fell (‘the incident’).”
8 By way of its Defence delivered on 23 October 2017, the defendant asserts the following:
“TAKE NOTE that the defendant says the plaintiff is not entitled to bring proceedings seeking damages for anything other than damages in respect of an injury to his right shoulder arising out of or in the course of his employment with the defendant in accordance with the orders made by His Honour Judge Dyer on 5 July 2017.”
9 The position of the defendant was that Judge Dyer, on 5 July 2017, granted leave to the plaintiff to bring common law proceedings only in respect of the injury suffered on 11 March 2012 (that is to say, the injury referred to in paragraph 5 of the Statement of Claim).
10 This matter was called on 28 July 2020 as part of the Geelong Circuit – although such case was to be conducted remotely from Melbourne because of the COVID‑19 virus. Both the plaintiff and defendant made various submissions on that day and the Court ordered that there be written submissions filed. Both parties have filed written submissions.
Relevant principles of law
11 Given that the plaintiff alleges that he suffered injuries arising out of, or in the course of or due to the nature of his employment on or after 20 October 1999 – and bearing in mind the dates of the alleged injuries, s134AB of the Act governs the processes under which the plaintiff must follow in order to be able to bring the common law claim for damages in respect of a work injury.
12 In Maurice Blackburn Cashman v Fiona Helen Brown,[4] the High Court noted that s134AB of the Act provides for five different ways in which the existence of a serious injury can be established:
[4]Maurice Blackburn Cashman v Brown (2011) 242 CLR 647
(a)Pursuant to ss(15), if the assessment made under s104B of the degree of impairment of the worker as a result of the injury is 30 per cent or more, the injury is deemed to be a “serious injury”;
(b)Pursuant to ss(7)(a), the Authority advising a worker as a result of a determination under s104(B) of the degree of the impairment of the worker, “that the worker is deemed to have a serious injury”; or
(c)Pursuant to ss(7)(b), by the Authority issuing a certificate under s134AB(16)(a) that it was “satisfied the injury is a serious injury”; or
(d)Pursuant to ss(9), which provides that in the event the Authority fails to advise the worker within a fixed time of its decision in relation to an application where the worker had a serious injury, the worker would be deemed to have a “serious injury”; or
(e)Under ss(19)(a) the Court, other than a Magistrates’ Court, on application of the worker being “satisfied on the balance of probabilities that the injury is a serious injury”. In the case under ss(19)(a), the Court would give leave, under ss(16)(b) to the worker to bring a proceeding.[5]
[5]Maurice Blackman Cashman v Brown (op cit) at paragraphs [21]-[22]
13 Clearly enough, the “gateway” accessed by the plaintiff in this proceeding was that leave was given pursuant to s134AB(16)(b) of the Act to bring a proceeding on the basis that the Court was “satisfied on the balance of probabilities that the injury is a serious injury”.
14 I refer to the Court of Appeal decision of Georgopoulos v Silaforts Painting Pty Ltd & Ors,[6] wherein the issue was raised:
“… Is a worker confined, in a claim for damages at common law in respect of a workplace injury, to a specific injury or injuries certified by the Victorian WorkCover Authority (‘the authority’) to be a serious injury or are the serious injury provisions simply a gateway to a claim for damages for the total injury suffered in compensable circumstances?”[7]
[6](2012) 37 VR 232
[7]See Georgopoulos (op cit) at paragraph [2]
15 In answer to such issue, the Court of Appeal stated:
“In our view, the effect of s 134AB(1) and (2) of the Act is that a worker may recover damages in respect of all the components of an injury which is compensable pursuant to s 82(1) of the Act if the compensable injury results in consequential impairment of the kind defined as serious injury by the Act.
We reach this conclusion for three fundamental reasons. First, s 134AB couples the notion of compensable injury, which arises out of s 82(1) of the Act, with the notion of consequential impairment, defined as serious injury by s 134AB(37) of the Act. A worker may recover damages in respect of ‘an injury’ which constitutes a compensable injury, but the compensable injury must be a serious injury in that it must result in impairment sufficient to constitute serious injury as that concept is defined.
Secondly, this construction results in a harmonious scheme in terms of the associated and consequential provisions of s 134AB. Conversely, there are a series of provisions in s 134AB which are problematic if s 134AB(2) is understood to require that each component of a compensable injury in respect of which a worker may recover damages must itself constitute a serious injury.
Thirdly, the legislative history of the provisions supports the view that Parliament intended the construction we prefer.”[8]
(my emphasis)
[8]See Georgopoulos (op cit) at paragraphs [3]-[6]
16 When interpreting the relevant parts of s134AB of the Act, the Court stated it was necessary to read the Act as a whole (rather than just ss(1) and ss(2)) and examine the broader context of s134AB.
17 The Court noted that s134AB(1) first defines the class of persons to whom it applies by reference to those who or may be entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment on or after 20 October 1999. The Court further noted that the reference was back to s82(1) of the Act.
18 Section 82(1) of the Act reads:
“If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
19 Furthermore “injury” is defined in general inclusive terms by s5 of the Act.
20 Section 5 defines “injury” to be:
“‘injury’ means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness; and
(b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); and
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
21 The Court also noted that the potential breadth of the notion of “an injury” under s82 is controlled by the causal connection stipulated and is relevantly, any physical or mental injury caused to a worker arising out of or in the course of any employment. In this sense, “an injury” is a compendious term and thus an injury in this “comprehensive sense” is commonly described as a “compensable injury”.[9]
[9]Reference was also made to AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [8] and [30]
22 The Court of Appeal also referred to Barwon Spinners Pty Ltd & Ors v Podolak,[10] wherein it was stated:
“With that established, subs (1) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including subs (2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of subs (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies (including the leave provision in subs (16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description ‘serious injury’ if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses — first, in prohibiting a common law proceeding for damages in respect of it ‘otherwise than as permitted by and in accordance with this section’ and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with subs (2) which, though essential, is a part of the overall scheme: it does not exist independently of it.”[11]
(My emphasis)
[10](2005) 14 VR 622
[11]See Barwon Spinners Pty Ltd (op cit) at paragraph [13]
23 Reference was made by one or both parties to the various following decisions:
(a) Brambles Ltd v Wail,[12] a decision of the Court of Appeal that involved consideration of s135A of the Act which applied to work injuries occurring before 12 November 1997,[13] whereas s134AB applies to work injuries occurring and on after 20 October 1999.[14] Although s135A is considerably different in various respects to s134AB, the provisions which permit a court to entertain a worker’s common law claim are expressed in virtually the same terms.
[12](2002) 5 VR 169
[13]See s135A(1) of the Act
[14]See s134AB(1) of the Act
In this case, the worker (Mr Wail) was injured on 26 July 1993 in the course of his employment. He obtained leave from a County Court Judge “to bring proceedings based upon a cause of action said to have arisen on 9 August 1993”. At the hearing of the damages trial, Counsel for Mr Wail sought to amend the Statement of Claim to allege that the injury occurred on 26 July 1993 – which was clearly the correct date. The trial Judge granted leave to make an amendment to the date and such leave was challenged on appeal, it being alleged that the Court did not have jurisdiction to determine the claim given the terms of the original order made by the Judge on the serious injury application.
The Court (Winneke P, Charles and Batt JJA) after examining the legislative structure of s135A, stated, in part:
“The appellant contends, under cover of this ground, that the judge was in error in failing to ‘strike out’ or dismiss Wail’s claim following the amendment made at the outset of the hearing to allege that the injury, for which Wail was seeking compensation, occurred on 16 July 1993 and not on 9 August 1993 which was the date specified by the judge who determined the application for leave pursuant to s135A of the Accident Compensation Act. As we have previously noted, persons who claim damages in this State for injuries ‘arising out of, or in the course of or due to the nature of [their] employment’ can only seek to pursue those claims in accordance with the provisions of s135A. So far as relevant to this case, such claims can only be brought if their employment was a significant contributing factor to the suffering of the injury and the injury is a ‘serious injury’ and it arose on or after 1 December 1992 (s135A(2)). The significance of the date is that it was the date upon which the Accident Compensation (WorkCover) Act 1992 came into operation. Relevantly, for the purposes of this claim ‘serious injury’ is defined in subs(19) as ‘serious long-term impairment or loss of a body function’. Again relevantly for present purposes subs(4)(b) prescribes that no such claim can be brought unless ‘a court, on the application of a worker ... gives leave to bring the proceedings’. Such leave can only be given if ‘it is satisfied that the injury is a serious injury’ (subs(6)). These provisions are, thus, ‘gateway provisions’ which must be satisfied before the claim for damages can be brought. The provisions have provided fertile fodder for the profession notwithstanding the lament of the courts that it has given rise to a ‘foolish, wasteful and inconvenient system’ which duplicates the expense in establishing the nature and degree of the potential plaintiff’s injury. It can only be assumed, from the fact that the system remains, that it is still regarded, on balance, as a cost-saving system. By its very nature, a preliminary finding by a judge that the applicant for leave has sustained a ‘serious injury’ arising out of his employment does not finally determine the rights of the parties. It is merely a preliminary step along the way to establishing those rights. It does not prevent the defendant, at the trial, from challenging the seriousness of the injury, or from seeking to show that it did not arise out of the plaintiff’s employment, or that such employment did not significantly contribute to it. The focus of the leave application is whether, in the opinion of the judge asked to grant leave, the injury is a ‘serious’ one within the meaning of s135A(19).
Notwithstanding what we have said, the appellant here contends that because the order made by the judge, who heard the leave application, records that leave was given to Wail to bring proceedings for a serious injury ‘based on the cause of action said to have arisen on 9 August 1993’, the judge at trial was bound to terminate those proceedings as soon as application was made, and leave was given, to amend the date of the occurrence of injury to 26 July 1993. It was further contended that the judge was not permitted to look at the transcript of proceedings of the "leave application" for the purposes of ruling upon the application.
In our view, there is no merit whatever in this ground of appeal. Indeed it was not surprising to hear senior counsel for the appellant inform the Court that it was not his ‘killer point’. In the circumstances of this case, his Honour was correct to have regard to all the documents before him, including the transcript of the leave application, for the purposes of determining that the date, which was referred to in the order granting leave, was not material either to that judge’s order, or to the application for leave to amend. What was before the judge demonstrated quite clearly that Wail had complained to his treating doctors that he had injured his back ‘pulling a trolley’ on 26 July 1993 in the course of his employment. That was the injury which was the subject of the ‘leave application’. … .”[15]
[15]Brambles Ltd v Wail (op cit) at paragraphs [18]-[21]
(my emphasis)
(b) Ronchi v Alcoa Portland Aluminium Pty Ltd,[16] a decision of the Supreme Court that also involved consideration of s135A of the Act. In that matter, Mr Ronchi was given leave to bring proceedings in respect of injuries suffered by him in the course of his employment from 1 December 1992 to 12 December 1997.
[16][2007] VSC 340
In the damages claim, the defendant pleaded that the plaintiff was only entitled to bring proceedings in respect of injuries allegedly sustained when he was driving a hauler on 21 September 1995.
Consistent with what had been said in Brambles,[17] the trial judge at the damages hearing examined both the trial judge’s reasons (at the serious injury hearing) and the material before him so as to determine the true nature of the injury for which leave was granted. The trial judge at the damages hearing concluded that:
[17]Op cit
“It is apparent that the injury for which leave to proceed is granted was injury to the lower back suffered during ongoing employment in 1995.”
The trial judge at the damages claim then directed that the plaintiff’s Statement of Claim be amended in accordance with his Ruling that the “serious injury” extended from 1995 onwards.
(c) Harvey v Methodist Ladies College,[18] a decision of the Supreme Court that involved the operation of s134AB of the Act. At the hearing involving “serious injury”, leave was granted to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of injury to the lumbar spine on or about 25 October 2001. At the damages trial, the plaintiff pleaded injury over the course of her employment from 20 October 1999 to 25 October 2001. By way of its Defence, the defendant asserted that the plaintiff was only entitled to bring the claim for damages in respect to injury on or about the 25 October 2001 and not in respect of any other injury.
[18][2008] VSC 425
Beach J permitted the plaintiff to rely on the allegations in the Statement of Claim, and went on to state:
“As the authorities to which I have already referred show,[19] there is nothing impermissible, in appropriate circumstances, in a plaintiff alleging that different aspects of her employment with the defendant were alternative or cumulative causes of an injury in respect of which such a plaintiff has been given leave to bring proceedings. Whether one looks solely at the order of Judge Strong, or at the order of Judge Strong in the context of the plaintiff’s application and the affidavit that she swore in support thereof, it is clear that the plaintiff has leave to bring proceedings in respect of an injury suffered on or about October 2001 and in respect of work performed from 20 October 1999 … .”[20]
[19]The cases include Brambles Ltd v Wail (op cit); Ronchi v Alcoa Portland Aluminium Pty Ltd (op cit) and O’Neill v TD Williamson Australia Pty Ltd [2008] VSC 398
[20]See Harvey v Methodist Ladies College (op cit) at paragraph [11]
(my emphasis)
(d) Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[21] a decision of the Supreme Court that involved consideration of s134AB of the Act. In that matter, Mr Kruisselbrink sued his employer, Nationwide Maintenance Services Pty Ltd, for injuries that he allegedly sustained in the course of his employment between 2000 and 2005. In a not dissimilar way to the present proceeding, Counsel for each of the parties requested the trial Judge to determine questions of amendments to both the Statement of Claim and the Defence.
[21][2010] VSC 260
As described by the trial Judge (J Forrest J), the “nub of the argument” for each side centred upon what constraints (if any) were imposed upon Mr Kruisselbrink’s common law claim by the terms of a serious injury certificate issued by the Victorian WorkCover Authority pursuant to s134AB(16)(a). Again, as pointed out by the trial Judge, if the defendant’s arguments succeeded, then the claim by Mr Kruisselbrink was limited to one incident at work in May 2005, whereas Mr Kruisselbrink succeeded in securing the amendments he could assert “that his employment as a continuum, including two separate incidents, forms the basis for his common law claim”. The undisputed factual background was that Mr Kruisselbrink commenced employment with the defendant as a cleaner in 2000.
Earlier, Mr Kruisselbrink had been granted a “serious injury” certificate. The certificate was dated 9 February 2008 and read as follows:
“For the purposes of s 134AB of the Accident Compensation Act 1985 Gallagher Bassett Services Compensation Victoria Pty Ltd being a person appointed as an authorised agent to the authority pursuant to s 23 of the Act, certifies in respect of Danny Kruisselbrink that:
(a) Gallagher Bassett Services Compensation Victoria Pty Ltd is satisfied that the injuries sustained on 5 May 2005 is a serious injury within the meaning of s 134AB(38)(b)(i) and (ii) of the Act; and
(b) Subject to compliance of the s 134AB(12) of the Act, consent is given pursuant to s 134AB(16)(a) of the Act for Danny Kruisselbrink to bring proceedings for recovery of pain and suffering and pecuniary loss damages as a result of injuries sustained on 5 May 2005.[22]
[22]Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [38]
(my emphasis)
Forrest J reviewed various parts of Mr Kruisselbrink’s s134AB application, including the Form A Application, an affidavit sworn by him on 10 April 2008, a Draft Statement of Claim, a series of medical reports, an engineer’s report and the various Claim Forms.
After reviewing such material, Forrest J found that such material was consistent with nominated injuries alleged in the Statement of Claim. In passing, he also noted that on the material before him, the serious injury certificate could not have been issued on 9 February 2008, as the s134AB application was not filed by Mr Kruisselbrink until April 2008. Furthermore, the date of injury asserted in the certificate, being 5 May 2005, was, at least on the material, incorrect, as the plaintiff had gone off work on that day.
Forrest J reviewed the various preceding authorities, and stated:
“The approach of Beach J is consistent with what was said by the Court of Appeal in Brambles, namely that it is the injury, which is the focus of the grant of leave. 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 there is no basis for linking the serious injury to the work activities.”[23]
[23]Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [56]
(e) Forrest J set out what he refers to as principles drawn from the threads of the various authorities referred to in his Judgment. Of course, it must be borne in mind that Forrest J was dealing with circumstances where a certificate had been granted by the Authority. Forrest J states:
“I think it possible to draw the threads of these authorities together in the following way:
(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. … .” [24]
(my emphasis)
[24]Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [63]
24 I also refer to the relevantly recent Court of Appeal decision of Belgrave Heights Christian School v Diane Moore.[25] In that matter, the plaintiff was employed by Belgrave Heights Christian School as a casual bus driver between 2005 and 2012. By way of a common law claim, the plaintiff alleged that:
[25][2020] VSCA 240
(a) she was often thrust forward and then backwards in her seat;
(b) she did not have an appropriate seatbelt;
(c) the driver’s seat of the bus was poorly positioned in relation to the steering wheel;
(d) the driver’s seat did not have a headrest;
(e) the bus was “generally non-ergonomic”.
25 Furthermore, on 13 August 2012, whilst driving the bus, the plaintiff alleged that she applied the brake and clutch simultaneously and, at that point felt a sudden acute and excruciating pain in her lower back.
26 On 11 January 2018, the Transport Accident Commission, pursuant to s93(4)(c)(ii) of the Transport Accident Act 1986, issued the plaintiff with a certificate consenting to the bringing of proceedings “for the recovery of damages in relation to injury sustained by … [the plaintiff] as a result of a transport accident which occurred on 13 August 2012”.
27 On 10 August 2018, the plaintiff filed a Writ in the County Court claiming damages from the defendant in respect to the injuries she sustained “over the course of her employment … including 13 August 2012” as a result of driving the bus.
28 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 s134AB of the Act.
29 On 6 December 2019, an application to strike out paragraphs 10 and 11 of the Defence was heard by a judge in the County Court. On 19 December 2019, the trial judge ordered that the paragraphs be struck out. The trial judge, applying the Kruisselbrink[26] line of authority, accepted other incidents of injury arising in the course of the plaintiff’s employment could be relied on. On appeal, the Court of Appeal referred in detail to Kruisselbrink and the various authorities preceding that decision, and also referred to, in particular, the five propositions that J Forrest J identified from the authorities, to which reference has already been made.
[26]Op cit
30 The Court of Appeal then stated:
“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.[27] 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).
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.”[28]
[27]Reference was made to Harvey v Methodist Ladies College (op cit) at paragraphs [11]‑[12]; Kruisselbrink (op cit) at paragraph [56]
[28]Belgrave Heights Christian School v Moore (op cit) at paragraphs [67]-[68]
31 Clearly enough, the Court of Appeal endorsed the Kruisselbrink line of authority insofar as it applied to (relevantly) s134AB of the Act.
32 As I have already recorded, there are several “gateways” to bring common law claims for damages in respect of work injuries. The gateway accessed in this proceeding was for the plaintiff to seek leave from a judge that he has a “serious injury” within the meaning of the Act whereas in Kruisselbrink, the Victorian WorkCover Authority granted a certificate.
33 However, it is to be noted that Ronci[29] and Harvey[30] both involved a court granting leave to bring common law proceedings, albeit that Ronci involved s135A of the Act whereas Harvey involved s134AB of the Act.
[29]Op cit
[30]Op cit
34 Furthermore, I consider that, in particular, paragraphs 3 and 5 of those propositions enunciated by J Forrest J in Kruisselbrink, have relevance to this proceeding. As is made clear in that line of authority, it is the “injury” which is the focus of the grant of leave, and provided the events alleged to be productive of the serious injury can be related to the employment – that is, a compensable injury – and it occurred as a result of work after 20 October 1999, then the claim is tenable unless the employer establishes that there is no basis for linking the serious injury to the work activities.
35 It is also clear that when determining the ambit of the leave to bring proceedings, a court is entitled to examine the material provided to the Authority as part of the s134AB application, together with a transcript of the hearing of any serious injury application and, of course, the ultimate judgment of the court granting leave.
36 By way of their written submissions, those acting for the plaintiff submit that it is patently clear that both by way of affidavit material and the judgment of Judge Dyer, that leave was granted to include both what is referred to in the Statement of Claim as the “the work” injury and “the incident” injury.
37 Accordingly, it is submitted that the judgment of his Honour Judge Dyer on 5 July 2017 cannot be construed to be only a finding of a serious injury in respect to injury to the right shoulder on 11 March 2012.
38 In their written submissions, those acting for the defendant accepted that it is well established that the Court, in considering such an application as the present, may, in determining the scope of leave granted by an earlier court, have regard to the documents which formed the basis of the serious injury application; the manner in which such application was conducted before the trial judge, and the reasoning of the trial judge in determining to grant leave to commence proceedings.[31]
[31]Reference was made to Kaltsis v Ice Design Pty Ltd [2015] VCC 28 at paragraphs [33]-[40] and the cases cited therein
39 Those acting for the defendant make a distinction between the “the work” injury (pleaded in paragraph 4) and “the incident” injury (pleaded in paragraph 5 of the Statement of Claim).
40 Those acting for the defendant also referred to Lu v Mediterranean Shoes Pty Ltd,[32] Dean v Crossway Holdings Pty Ltd[33] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[34] in support of the principle that a plaintiff is not entitled to aggregate several impairments or injuries to body function, whether the injuries were sustained on one occasion or on several occasions.
[32](2001) 1 VR 511
[33][2011] VSCA 198 at paragraph [72]
[34]Op cit
41 It was submitted by those acting for the defendant that –
“If the grant of leave pronounced by the trial judge on the serious injury application is to have the scope now contended by the plaintiff i.e. that it incorporates aggregated injuries arising from two separate and distinct causes of action, it would require this Court to accept that the trial judge, in granting leave, ignored this well-established principle. It is submitted that such finding would require the clearest indication within the material referred to in paragraph 4 above that the trial judge misdirected himself.”
42 It was submitted that a “close reading of the material” establishes that the trial judge made no such error, but rather approached the question of the grant of leave in an entirely appropriate and orthodox fashion, in that:
(a) Considering the “work injury” and the “incident injury” as two separate and distinct causes of action;
(b) In considering the impairment from each of the causes of action separately and distinctly; and
(c) In restricting himself to a consideration of the impairment flowing from the incident injury, and determining that the impairment to the plaintiff’s right shoulder arising from that injury satisfied the “serious injury” test established by the legislation.
43 I will now refer to the material available to the Court – which includes the transcript of the serious injury application, the various submissions of counsel to the Court, the affidavit material relied on by the plaintiff and the judgment handed down by Judge Dyer on 5 July 2017.
44 In particular, I initially refer to the material relied on by the plaintiff. In essence, the plaintiff submits that the decision of Judge Dyer is to the effect that the plaintiff’s right shoulder “suffered injury in compensable circumstances to do with both the heavy and repetitive work during the course of his employment with the Defendant and the specific fall occurring on 11 March 2012”.
45 Reference was made to the following:
(a) The “course of employment claim” was canvassed in the serious injury proceeding and indeed, when counsel for the plaintiff opened the matter, he referred to the plaintiff having a first medical attendance in relation to shoulder issues in around 1986. Furthermore, he stated that over the years since then, the plaintiff had regular use of heavy equipment such as crowbarring, jackhammers and rattle guns in the course of his employment, as well as the incident in March 2012;[35]
[35]T3, L28 – T5, L12
(b) During cross-examination, the plaintiff confirmed that he had made complaints about both of his shoulders over the course of his employment and he described bilateral “aching” shoulder pain in the context of 12 and 16-hour shifts and referred to frequent use of physiotherapy services because “it was a heavy industry”;
(c) At paragraph 1 of his judgment, his Honour Judge Dyer states that the plaintiff suffered injuries to both shoulders during the course of his employment with the defendant which was described as being heavy and repetitive, and also suffered a specific injury to his right upper limb in a fall on 11 March 2012;
(d) At paragraph 8, Judge Dyer summarises the first affidavit sworn by the plaintiff which he refers to as “relevant to my determination”. Such matters involved the various incidents of injury and the fall on 22 March 2012;
(e) At paragraph 20 of the judgment, Judge Dyer reviewed the reports from a treating physiotherapist, Mr Seignior, dated 25 August 2016 and 14 November 2016. I refer to paragraph 20, whereat Judge Dyer states, in part:
“… The reports state that Mr Blackney attended for physiotherapy following the surgeries performed in July and September 2012 up until 9 September 2014. The report opined that the shoulder injuries were ‘consistent with over use and excessive loading type injuries[‘], and that injuries of this nature were:
‘… commonly seen in the line of work performed at Alcoa through repetitive crow bar use and manual work of the type performed by Steven in his role over many years. … the right shoulder became symptomatic following the acute trauma to the shoulder region after his fall at work.’”
(f) At paragraph 41 of the judgment, Judge Dyer states:
“Having read the medical material in some detail, I have little difficulty in being satisfied that he has suffered injuries to each shoulder in work related circumstances and I am further satisfied that the fall occasioned by him in March 2012 was a cause of the injury in his right shoulder.”
(g) Reference is also made to paragraph 43 of the judgment, where Judge Dyer states:
“Notwithstanding the manner in which this case was opened by Mr Macnab, he ultimately accepted in final address that the primary basis upon which injury and impairment relied was in relation to the plaintiff’s dominant right shoulder. I am satisfied that the right shoulder was injured in the fall of March 2012. I am further satisfied that the heavy work throughout the course of Mr Blackney’s employment with Alcoa was also a cause of injury to the same shoulder. … .”
(h) Reference was also made to paragraph 59 of the judgment, where Judge Dyer stated:
“…Although I am satisfied that there were probably different causative factors relevant to each shoulder, the consequences of the right shoulder injury for a right hand dominant manual worker is such that he would seem to have only a theoretical capacity for below shoulder light process work where no such work has been identified on the evidence presented in this case.”
Counsel for the plaintiff submits that the “differentiation” referred to in paragraph 59 is “between shoulders” and not the differentiation between the general heavy and repetitive work and the fall of March 2012.
46 Those acting for the defendant made reference to the following matters in support of their submissions:
(a) In the opening address by counsel for the plaintiff that there was an absence of shoulder complaints between November 2008 up to the incident on 11 March 2012;[36]
[36]T5, L2-6
(b) Counsel for the plaintiff, in his closing submissions to the trial judge, stated that the impairment is primarily to the right shoulder and that “the starting point is to compare the plaintiff before and after”.[37]
[37]T71, L23-30
In further submissions, counsel for the plaintiff sought to highlight the absence of complaints prior to 2012 and the need for treatment after the incident on 11 March 2012.[38]
[38]T73, L30 – T74, L22
It is submitted by those acting for the defendant that counsel for the plaintiff was “clearly” referring to the well-known dicta in Petkovski v Galletti,[39] and the need for the plaintiff to identify the extent of an aggravation arising from a claimed injury in determining whether the claimed aggravation was “serious”.
[39] [1994] 1 VR 436
It was submitted if the application was made on the basis of a “compendious cause of action” arising from both the work injury and the incident injury, such submission would have been entirely contrary to the plaintiff’s case, as there would, in such instance, be no need to disaggregate the impairments;
(c) Reference is made to the trial judge raising with counsel for the defendant the application of Lu’s[40] Case and the fact that it disentitled the plaintiff from aggregating both the work injury and the incident injury.[41]
[40]Lu v Mediterranean Shoes Pty Ltd (op cit)
[41]T92, L9-19; T93, L16-22
It was submitted that paragraphs 1 and 41 (to which I have already made reference) “explicitly acknowledged the existence of two separate and distinct mechanisms of injury”.
Furthermore, it was submitted that nothing in paragraph 43 of the judgment (to which reference has already been made) “derogates from that finding. Indeed, the trial judge is simply reiterating the finding expressed at paragraph 41 that there are two separate causes of injury to the plaintiff’s right shoulder – the work injury and the incident injury”;
(d) Counsel for the defendant submitted that at paragraph 45, Judge Dyer, by implication, “accepts the submission of plaintiff’s counsel of the absence of symptoms of significance in the right shoulder, and that his consideration is based upon the plaintiff’s right shoulder symptoms since the fall in March 2012”;
(e) Counsel for the defendant referred to paragraph 59 of the judgment (to which reference has already been made) and submitted that this aspect of the trial judge’s reasoning “clearly demonstrates that he considered the application purely from the vantage point of a consideration of the impairment to the plaintiff’s right shoulder flowing from the incident injury”.
Furthermore, it was submitted that the trial judge “further reiterated such a finding in discussion with counsel at the time of entering judgement”, and reference was made to the following:
HIS HONOUR:
Q:“No. Well I think given the complexity of this case that you basically had a gradual process argument in relation to both arms, and then the frank injury that I found was in relation to the right arm, and you’ll see from the reasons that I’ve spared your client or anyone else the opportunity to consider the loss of annual [sic] dexterity that was initially opened, but I think in the end Mr Macnab decided to concentrate on the right arm which I ultimately found to be serious. Well what I might do then I’ll just formally pronounce an order. The first order is that leave is granted to the plaintiff to commence a claim for damages in accordance with s.134AB(16)B [scil (b)] of the Accident Compensation Act in respect of the injury - well I suppose it’s – if leave is granted the rest follows, doesn’t it?---.”
MR MOLONEY:
A:“I think probably, yes. I haven’t read Your Honour’s reasons, but if Your Honour’s telling me that you weren’t restricting it to the frank injury to the right - - -.”
HIS HONOUR:
Q:“I found on the right shoulder, but I found the right shoulder and the left shoulder were gradual process, but specifically in the fall in 2012 that that was – that impacted on the right shoulder, and was still a cause. So I think - - -.”
MR MOLONEY:
A:“Well perhaps the injuries to the plaintiff’s shoulders - - -.”
HIS HONOUR:
Q:Injuries to the right shoulder.” [42]
[42]T102, L31 – T103, L26
47 In such circumstances, counsel for the defendant submits that the leave granted by the trial judge after the completion of the serious injury application, was restricted to injury sustained by the plaintiff in the fall on 11 March 2012, that being the injury whose consequent impairment of the plaintiff’s right shoulder the trial judge regarded as “serious” in the relevant statutory sense.
Conclusion
48 Seemingly, those acting for the defendant do not challenge the correctness of the Kruisselbrink[43] line of authority (as recently affirmed in the Court of Appeal decision of Belgrave Heights Christian School v Moore)[44] insofar as it relates to s134AB of the Act. Rather, the submission of the defendant is that, essentially, there were two causes of action – one cause of action being the general course of employment – the so-called “work” injury (see paragraph 4 of the Statement of Claim) and the second cause of action being the circumstances constituting the “incident” of injury on 11 March 2012 (see paragraph 5 of the Statement of Claim). Whereas Judge Dyer, so it was submitted, found that the incident in March 2012 gave rise to a “serious injury” but the other cause of action, being the general cause of employment action, did not.[45]
[43]Op cit
[44]Op cit
[45]T4, L4-9
49 When queried by the Court whether Judge Dyer actually found that, it was submitted that it is not explicitly found but it is by “implication in his judgment and in the surrounding of discussion”. It was for this reason, so it was submitted, reference was made to various parts of his judgment to support the submission.
50 Moreover, the defendant submits, as I would understand the proposition, that it is also implicit in the judgment of Judge Dyer that he was not prepared to aggregate “the work” injury – that is, the various activities giving rise to shoulder issues over the years – with the incident on 11 March 2012.
51 The fundamental upshot of such submissions is that it is said, on the part of the defendant, that the plaintiff can only rely on the incident of injury on 11 March 2012 as that was the gateway serious injury to permit common law proceedings.
52 The various matters to which counsel for the defendant referred the Court in support of his submissions, in my view, are, on balance, far more supportive of the concept that Judge Dyer, insofar as he granted leave to bring common law proceedings in relation to the right shoulder “injury”, took into account both the “work” injury (paragraph 4 of the Statement of Claim) and the “incident” injury on 11 March 2012 (paragraph 5 of the Statement of Claim) in the course of the plaintiff’s employment.
53 Indeed, I consider that any fair reading of paragraphs 1, 8, 20, 41 and 43 are far more consistent with the submissions made by the plaintiff. Furthermore, the reference to which the defendant relies on when the Orders were made, to my mind, again supports the plaintiff’s position. I will not repeat all of what I have recorded but only this:
JUDGE DYER:
Q:… The first order is that leave is granted to the plaintiff to commence a claim for damages in accordance with s.134AB(16)B [scil (b)] of the Accident Compensation Act in respect of the injury - well I suppose it’s – if leave is granted the rest follows, doesn’t it?---.”
MR MOLONEY:
A:“I think probably, yes. I haven’t read Your Honour’s reasons, but if Your Honour’s telling me that you weren’t restricting it to the frank injury to the right - - -.”
HIS HONOUR:
Q:“I found on the right shoulder, but I found the right shoulder and the left shoulder were gradual process, but specifically in the fall in 2012 that that was – that impacted on the right shoulder, and was still a cause. So I think - - -.”
MR MOLONEY:
A: “Well perhaps the injuries to the plaintiff’s shoulders - - -.”
HIS HONOUR:
Q: Injuries to the right shoulder.” [46]
(my emphasis.)
[46]T102, L31 – T103, L26
54 It would appear that his Honour is referring both to the injury in the course of employment injuries and the 2012 injury when he refers to “injuries to the right shoulder”.
55 It must also be noted that there was no submission made by the defendant during the serious injury application about aggregation or otherwise between the so-called “work” right shoulder injuries and the so-called “incident” right shoulder injury which occurred on 11 March 2012. Indeed, the only reference to aggregation in the judgment of Judge Dyer is set out in paragraph 5, wherein Judge Dyer notes the defendant took issue with the aggregation of injuries to the left shoulder and right shoulder – that is to say, if there be injury to the left shoulder and be injury to the right shoulder, that cannot give rise to one impairment within the meaning of the Act. This issue has been a longstanding one as to whether or not manual workers can argue that injury to the left arm and injury to the right arm can be aggregated to one impairment given the nature of the work they perform. Such an issue was ultimately not relevant in this proceeding as counsel for the plaintiff only ultimately relied on the right arm injury to give rise to “serious injury”.
56 Furthermore, I also refer to the following points made by counsel for the defendant:
(a) Reference was made to T92, L9-19 and T93, L16-22 which is said to be the basis of his Honour Judge Dyer raising the well-known aggregation case of Lu v Mediterranean Shoes Pty Ltd.[47] On reading the transcript at T92, the reference to Lu involves issues pertaining to the left shoulder;
(b) I accept the submission by counsel for the plaintiff in respect to his construction of paragraph 59 of the judgment to which reference has already been made. A reading of such paragraph would suggest that any “differentiation” referred to in paragraph 59 is “between shoulders” and not the differentiation between the general heavy and repetitive work and the fall in March 2012.
[47]Op cit
57 I also consider that if Judge Dyer distinguished between the “work” right shoulder injury and the “incident injury” to the right shoulder, there would have been much cross-examination of the plaintiff as to the nature and extent of his pre-existing right shoulder injury, and that the fall on 11 March 2012 would have to be viewed in the light of Petkovski v Galletti,[48] that it would be incumbent upon the plaintiff to prove that the extent of any aggravation of the pre-existing right shoulder injury was a “serious injury” within the meaning of the Act. There was no suggestion that anything like this ensued in the serious injury application.
[48]Op cit
58 Furthermore, I do not consider when application is made for an injury to be a “serious injury” within the meaning of the Act and leave is sought to bring common law proceedings for damages, that the finding of any serious injury is dictated by what or indeed, any cause of action that is relevant to such injury. As the Kruisselbrink[49] line of authority established, it is the “injury” which is the focus of a grant of leave. Furthermore, it is a question of fact to be determined by the trial judge whether various events produced a single injury or must be treated as separate aggregations of the one injury (see O’Neill v TD Williamson Aust Pty Ltd.[50]
[49]Op cit
[50][2008] VSC 398 at paragraph [107]
59 I reject the submissions made on behalf of the defendant.
60 I will hear the parties on any consequential orders and costs.
- - -
0
15
0