Carajias v Transport Accident Commission & Anor (Ruling)
[2022] VCC 352
•28 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-01862
| MICHAEL CARAJIAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2022 | |
DATE OF RULING: | 28 March 2022 | |
CASE MAY BE CITED AS: | Carajias v Transport Accident Commission & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 352 | |
RULING
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Subject:PRACTICE AND PROCEDURE – ACCIDENT COMPENSATION
Catchwords: Workplace injury – serious injury application brought against the employer and the Transport Accident Commission – injury allegedly resulting from the driving of a bus in the course of employment – whether injury was a transport accident – denial by the Transport Accident Commission that the plaintiff’s injury circumstances fell within the definition of “transport accident” – whether s93(1) of the Transport Accident Act 1986 extended to prohibiting the filing of an originating motion – whether s46A, s47(7) and s47(7A) must be satisfied as conditions precedent to filing an originating motion – whether the denial by the Transport Accident Commission that the plaintiff’s injury circumstances fell within the definition of “transport accident” required the plaintiff to review that decision at the Victorian Civil and Administrative Tribunal
Legislation Cited: Transport Accident Act 1986; Accident Compensation Act 1985
Ruling: The Amended Summons is dismissed with costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Slater and Gordon Ltd Lawyers |
| For the First Defendant | Mr D Masel SC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
| For the Second Defendant | Ms E Golshtein | Thomson Geer Lawyers |
HIS HONOUR:
Introduction
1The ruling I am called upon to make centres upon the proper construction of provisions of the Transport Accident Act 1986 (“the TAC Act”).
2By an Amended Summons, the Transport Accident Commission (“the TAC”) seeks to stay the Originating Motion filed against it by the plaintiff for reasons I will refer to below.
3Mr D Masel SC appeared with Mr S Pinkstone of counsel for the Transport Accident Commission (“the TAC”), which is the applicant in this summons application. Ms S Gold of counsel appeared for the plaintiff, who is the respondent in this summons application. Ms E Golshtein of counsel appeared for the Victorian WorkCover Authority (“the VWA”).
Some relevant facts
4The plaintiff commenced employment with the National Bus Company (Victoria) Pty Ltd, which traded as Ventura Bus Services in December 2012. It changed its name to Transdev Melbourne Pty Ltd (“the employer”) in August 2013. The plaintiff was employed as a bus driver.
5The plaintiff filed an Originating Motion supported by an affidavit sworn 28 October 2020. The defendant to the Originating Motion is the employer. In the affidavit, the plaintiff described how he came to suffer injury as follows:
“6.On 17 June 2015 I suffered injury to my lower back while I was driving a bus on the 903 route. The driver’s seat was faulty and the air in the suspension was also faulty because the bus would not fully rise until the bus was moving. I dropped off passengers at the Heidelberg station. There was a height difference between the concrete and the asphalt. As I drove from the concrete to the asphalt there was a large jolt and this caused the seat to bottom out. I felt pain in my lower back.”
6The parties agreed that I could assume, for the limited purposes of this application only, that the plaintiff came to be injured in the way described in his affidavit.
The issues
7The plaintiff lodged a Workers’ Injury Claim Form with the employer dated 10 January 2018. The employer accepted liability and met its obligations under the Accident Compensation Act 1985.
8The reason why the plaintiff brought the Originating Motion against only the employer was because he was injured in the course of his employment with the employer; however, I was informed by Mr Masel and Ms Golshtein that the legislative framework is such that if an employee is injured as a result of a transport accident but in the course of employment, then the VWA will be liable for no fault payments, and the TAC will be liable for any damages found and recorded in common-law proceedings.
9The curious, if not remarkable, result for the plaintiff is that if he proceeds with the Originating Motion against the employer only, and he succeeds in obtaining leave, and it is found that he was injured as a result of a transport accident, then the VWA will not be liable for any damages found and recorded in common-law proceedings.
10The TAC will submit, at some point and in some place in the future, that the incident described by the plaintiff is not a “transport accident” as defined in s3(1) of the TAC Act. The definition of “transport accident” means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram. So, this position created by the legislation has driven the plaintiff to file a second Originating Motion against the TAC not only seeking leave to bring proceedings against the employer and the TAC, but for a declaration that the incident falls within the definition of “transport accident”.
A short chronology
11The following is a chronology which I consider to be all that is necessary for some additional background to be understood before I turn to the submissions made by each of the parties:
· 30 October 2020 – the plaintiff lodged a serious injury application with the VWA which was subsequently denied.
· 4 December 2020 – the plaintiff lodged a serious injury application with the TAC, which was preceded by correspondence passing between the plaintiff and the TAC.
· 23 February 2021 – the plaintiff filed the Originating Motion against the employer.
· 5 May 2021 – by letter, the TAC informed the plaintiff that it did not consider that the incident of 17 June 2015 fell within the definition of “transport accident”, and that it would not make a determination of the degree of impairment of the plaintiff. The decision was preceded by correspondence passing between the plaintiff, the TAC and the VWA.
· 7 May 2021 – the plaintiff filed the Originating Motion against the TAC.
· 1 June 2021 – by a further letter, the TAC informed the plaintiff that it did not consider that the incident of 17 June 2015 fell within the definition of “transport accident”, and that it would not make a determination of the degree of impairment of the plaintiff. The decision was preceded by correspondence passing between the plaintiff and the TAC.
· 21 February 2022 – an Order was made by the Court consolidating both Originating Motions with a scheduled date for hearing of 4 April 2022.
· 1 March 2022 – the TAC filed a Summons applying for a stay of the Originating Motion.
· 8 March 2022 – the TAC filed an Amended Summons applying for similar relief, and sought my leave to substitute the Amended Summons for the Summons. I granted that application.
12The more detailed background is contained in the affidavit of Mr Roland Buttigieg, solicitor with the TAC, affirmed 28 February 2022, and the affidavits of Ms Joanna Varvarigos, solicitor for the plaintiff, sworn 15 December 2021 and 17 January 2022.
The competing submissions
13The TAC submitted that because the plaintiff has not obtained a determination of his degree of impairment by reference to s46A, s47(7) and s47(7A) of the TAC Act, that the plaintiff’s Originating Motion is incompetent, and the Court has no jurisdiction to hear and determine the Originating Motion and to grant the relief sought by the plaintiff. The plaintiff submitted that such an interpretation is wrong.
14The starting point is s93(1). It is in the following terms:
“(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.”
15Essentially, subsections (2), (3) and (4) set out the routes by which a person injured as a result of a transport accident can recover damages in proceedings. The route provided by ss(3) is anchored to a determination of the degree of impairment, and if that determination exceeds 30 per centum, then the injury is deemed to be a “serious injury”.
16Subsection (4)(a) and (b) are likewise anchored to a determination of the degree of impairment, and provides that if the determination is less than 30 per centum, then the injured person may not bring proceedings for the recovery of damages “unless” one of two outcomes are achieved referred to in paragraph (c) and (d). Under paragraph (c), the injured person may bring proceedings if the TAC is satisfied that the injury is a “serious injury” and issues the injured person with a certificate in writing consenting to the bringing of the proceedings; alternatively, if the TAC is not so satisfied, then under paragraph (d), the Court, on the application of the injured person, gives the injured person leave to bring proceedings.
17Both paragraphs (c) and (d) appear to me to be dependent upon there first being a degree of impairment of the injured person having been undertaken by the TAC before it can exercise the discretion provided to it under paragraph (c), and failing success with the other routes to serious injury, resort can be had to the Court referred to in paragraph (d).
18The position taken by the TAC is that the incident of 17 June 2015 does not fall within the definition of “transport accident”, and on that basis it refused to undertake a determination of the degree of the plaintiff’s impairment. What it crystallises is that the real issue here is whether that incident falls within the definition. So what does the plaintiff now do, and is it open to the plaintiff in these circumstances to engage the jurisdiction of the Court to determine two questions, firstly, whether the incident falls within the definition, and, if so, whether the plaintiff has a “serious injury”.
19I will now turn to each of the other sections to which I was referred by the TAC.
20Section 46A(1) places a positive obligation on the TAC to determine the degree of impairment of an injured person “who is injured as a result of a transport accident”.
21Section 47(7) provides that the TAC may determine the degree of impairment of an injured person where the purpose in doing so is with respect to proceedings for the recovery of damages. It may undertake the determination of the degree of impairment at any time. However, that is conditional upon the injured person having been injured as a result of a transport accident, and who falls within paragraphs (a) and (b) of the subsection.
22Each of the sections relied upon by the TAC are premised on the plaintiff having been injured as a result of a transport accident. Despite being seized of the fact that the plaintiff contends that he was injured as a result of a transport accident, it has maintained its position, so it is difficult to see how any of those provisions apply.
23The TAC then returned to s93(1). It submitted that in the absence of a determination of the plaintiff’s degree of impairment, then s93(1) renders the plaintiff’s Originating Motion incompetent, and the Court has no jurisdiction to hear and determine the Originating Motion and grant the relief that he seeks. I disagree.
24Section 93(1) prohibits the plaintiff from recovering damages in any proceedings in respect of the injury suffered by the plaintiff as a result of a transport accident. The Originating Motion is not proceedings to recover damages. It is an initiating process used to obtain leave “to bring the proceedings”. If the legislature intended that all steps relevant to the recovery of damages are prohibited, then I would have expected it to have said so in plain language in the section. The absence of such a statement by the legislature leads me to conclude that it did not intend to prohibit an injured person from filing an Originating Motion seeking the leave of the Court to bring proceedings in circumstances where the TAC denies that the incident which caused the injured person an injury falls within the definition of “transport accident”.
Appeal to the Victorian Civil and Administrative Tribunal (“VCAT”)
25The TAC submitted that the proper venue, and only venue, for the plaintiff to agitate whether he suffered injury as a result of a transport accident is for him to apply for a review of the TAC’s decision to VCAT. It relied upon s47(7B), which is in the following terms:
“(7B)If the Commission determines under subsection (7) that—
(a)that degree of impairment of a person who is injured is not the result of a transport accident;
…
the person may apply to the Tribunal for review of the decision.”
26It would appear that the plaintiff could appeal to VCAT, applying for a declaration that the incident of 17 June 2015 falls within the definition of “transport accident”; however, the use of the word “may” usually denotes an option to take a step rather than being interpreted to be equivalent to must or shall, which usually denote that the step is mandatory. Again, if the legislature intended VCAT to be the only venue to determine a question of primary liability then I would have expected that would have said so in the clearest language. I see no basis to confine the plaintiff to an appeal to VCAT.
27Questions of primary liability are no novelty in this Court. In Originating Motions under the Accident Compensation Act 1985, and its successor, questions arise often enough about whether a worker was injured in the course of of his/her employment. While there is a view that such a question should be litigated separately through pleadings, a pragmatic approach has been adopted, and one of the drivers of that approach is to avoid the proliferation of what ultimately is unnecessary litigation when the Court is in just as good a position to determine that question as would a tribunal/court in a separate proceeding through pleadings.
Conclusion
28For the reasons set out above, I will dismiss the Amended Summons. I will then hear the parties on the question of costs, and what interlocutory orders are required to progress the Originating Motions as expeditiously as possible.
29I expect that the parties will confer and reach what agreement they can on what further interlocutory orders are required, and when all of the parties will be ready for the trial of the application.
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