Georgopoulos v Silaforts Painting Pty Ltd
[2012] VSCA 179
•8 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0035
| JOHN GEORGOPOULOS | Appellant |
| v | |
| SILAFORTS PAINTING PTY LTD & ORS | Respondents |
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| JUDGES | OSBORN JA, J FORREST and BEACH AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 June 2012 |
| DATE OF JUDGMENT | 8 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 179 |
| JUDGMENT APPEALED FROM | Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56 (Kaye J) |
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ACCIDENT COMPENSATION – Workplace injury – Serious injury – Where appellant’s injuries comprised both physical and psychological injuries – Where serious injury certificate pursuant to s 134AB(16) issued in respect of psychological but not physical injuries - Whether appellant confined in a claim for damages at common law to specific injury or injuries certified by the Victorian Workcover Authority to be a serious injury – Whether, once a serious injury has been established, appellant may claim for the total injury suffered in compensable circumstances – Accident Compensation Act1985 (Vic) ss 5, 82, 91, 98C, 104B, 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R P Gorton QC with Mr A D Clements | Nowicki Carbone |
| For the First Respondent | Mr S O’Meara SC with Mr C Young | Herbert Geer Lawyers |
| For the Second and Third Respondent | No appearance |
OSBORN JA:
J FORREST AJA:
BEACH AJA:
Introduction
At 4:00 pm on 31 August 1985, the Accident Compensation Act1985 came into force. Less than four years later, a Full Court of this Court was moved to commence a judgment in the following terms:
Yet another appeal comes before this Court concerning the construction of a section of the Accident Compensation Act 1985 (the Act).
The section in question is the troublesome s. 135 of the Act …[1]
Those sentiments are as apposite today as they were more than 22 years ago. The section in question in this appeal is the equally troublesome s 134AB of the Accident Compensation Act 1985 (‘the Act’).[2] To borrow from the words of Brooking J in Neville Smith Timber Industries Pty Ltd v Alen,[3] ‘[o]nce again we plunge into the dark and thorny thickets of the Workcare [now called Workcover] legislation’.
[1]Wellbridge v Jackson [1990] VR 689, 690 (Murphy, Marks and Gobbo JJ).
[2]See also the observations of Winneke P in Brambles Limited v Wail [2002] VSCA 150, [18].
[3][1991] 2 VR 1, 6.
This appeal raises a fundamental question with respect to the operation of the Act. 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’)[4] 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?
[4]Trading as WorkSafe Victoria: s 5 of the Act.
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.
Before explaining each of these reasons in detail, it is necessary to say something, first, about the unusual background to this proceeding and, secondly, about the relevant principles of statutory construction.
Background circumstances
The appellant, a painter, was injured on 18 September 2006 when he fell from a scaffold whilst working at a building site at Malvern. He was employed by the first respondent, Silaforts Painting Pty Ltd.
On 22 July 2008, the appellant lodged a serious injury application in respect of his injuries pursuant to s 134AB(4) of the Act. The application was based on the definition of serious injury in s 134AB(37)(a) of the Act, and relied upon claimed physical injuries to the spine and left foot. The appellant sought leave to commence proceedings to recover pecuniary loss damages and pain and suffering damages.
On 19 November 2008, the solicitors for the Authority wrote to the appellant’s solicitors, advising that the physical injuries, relied on by the appellant, were not deemed to be serious injuries within the meaning of s 134AB(37), that the Authority was not satisfied that the appellant had suffered a serious injury within the meaning of the Act and that therefore it would not issue a certificate to the appellant pursuant to s 134AB(16)(a) of the Act. Pursuant to s 134AB(16)(b) of the Act, the appellant then had 30 days, from the date of that advice, in which to make an application to the Court seeking leave to bring proceedings. However, it was not until 22 December 2008 that an originating motion was issued on behalf of the appellant seeking leave to commence common law proceedings. After it was brought to the attention of the appellant’s solicitors that the proceeding had been commenced out of time, the parties executed consent orders that it be dismissed with no order as to costs.
Subsequently, on 11 September 2009, the appellant served a second serious injury application upon the Authority, again in accordance with s 134AB(4) of the Act. That application set out the same physical injuries as those contained in the first application. In addition, it listed the following injuries:
Psychological or severe mental injuries, including but not limited to depression, anxiety and stress, arising from the consequences of the physical injury (‘The psychological injuries’).
The application stated that the appellant was relying upon paragraph (c) of the definition of ‘serious injury’ contained in s 134AB(37) as well as paragraph (a).
On 1 December 2009, the solicitors for the Authority wrote to the solicitors for the appellant referring to both the earlier application and s 134AB(21) as it then was, which provided that if a worker, having made an application for leave to bring proceedings, fails to satisfy a court that the injury is a serious injury, the worker is not entitled to make a further application for leave to bring proceedings in respect of the same claimed cause of action.
On 23 December 2009, the solicitors for the Authority advised the appellant’s solicitors that the Authority rejected the application as the degree of impairment sustained did not meet the statutory requirements and therefore the injury was not deemed to be a serious injury and, further, that it was not satisfied that the worker had suffered a serious injury within the meaning of the Act and that therefore a certificate would not be issued. The solicitors again asserted that the appellant was not entitled to make a further application for leave to bring proceedings.
On 20 January 2010, the appellant issued a second originating motion seeking leave to commence common law proceedings in relation to both the physical and psychological injuries identified in the September 2009 application. The respondents to this proceeding were the first respondent, his employer, and the Authority.
The hearing before Judge Bowman and the sequelae
On 26 October 2010, Judge Bowman heard preliminary argument as to whether the appellant was entitled to pursue the second originating motion.
The respondents in the proceeding before Judge Bowman contended, as foreshadowed in the correspondence, that the application was foredoomed by the operation of s 134AB(21) amongst other considerations. It was determined by his Honour that this issue should be dealt with as a preliminary point and that the future conduct of the originating motion could be considered once this question was resolved.
On 16 December 2010, Judge Bowman delivered reasons for judgment. His Honour concluded:
In summary, I am of the view that the further application is valid only insofar as it relates to the mental injury previously described, which injury, to be serious within the meaning of the Act, must meet the requirements of paragraph (c) of the definition contained in section 134AB(37). The case may proceed on the basis that the plaintiff is allowed to adduce evidence only in relation to this injury and the issue of whether it satisfies the statutory requirements.[5]
His Honour added that he would hear from the parties in relation to the future conduct of the matter and any ancillary orders.
[5]At [70] of the reasons. There was no appeal from the orders made as a result of these reasons. Further, no challenge was made to the correctness of these reasons (or the orders that flowed from them) in this appeal.
Following his Honour’s decision, the Authority, on 31 January 2011, granted a serious injury certificate to the appellant pursuant to s 134AB(16)(a)(ii). The certificate was in the following form:
For the purposes of section 134AB of the Accident Compensation Act 1985, Allianz Workers Compensation (Vic) Limited being appointed as an authorised agent of the Victorian WorkCover Authority pursuant to section 23 of the Act, certifies in respect of John Georgopoulos that:
(a)Allianz Workers Compensation (Vic) Limited is satisfied that the injury (‘psychological and/or psychiatric injuries, including but not limited to depression, anxiety and stress, arising from the consequence of the physical injuries (but not those physical injuries)’) alleged to have been sustained on or about 18 September 2006 is a serious injury within the meaning of:
•Section 134AB(38)(b)(i) and (ii)
of the Act; and
(b)Subject to compliance to subsection 134AB(12) of the Act, consent is given pursuant to section 134AB(16)(a) of the Act for John Georgopoulos to bring proceedings for the recovery of:
•pain and suffering and pecuniary loss damages
as a result of that injury.
On 18 February 2011, Judge Bowman gave leave (pursuant to the reasons his Honour delivered on 16 December 2010) to the appellant to commence a proceeding:
[F]or the recovery of common law damages for pain and suffering and economic loss in respect of injuries (psychological and/or psychiatric injuries, including but not limited to depression, anxiety and stress) sustained on or about 18 September 2006.
It is not immediately apparent how these orders sit with the certificate issued on 31 January 2011. However, at the hearing of this appeal it was accepted that the orders must have been made by the consent of the parties. Although no hearing on the merits had occurred in relation to whether the appellant had sustained a serious injury, the terms of the order demonstrate that the Authority accepted that the appellant met the serious injury criteria, presumably being satisfied that the appellant had sustained a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ as required by s 134AB(37).
The issuing of a certificate and the granting of subsequent leave is unusual. Generally the provision of a certificate by the Authority under s 134AB(16)(b) would obviate the need for a court to give leave – although neither are mutually exclusive. In any event, the end result of the hearing before Judge Bowman was that by reason of either the certificate or his Honour’s order, the appellant had satisfied the serious injury provisions of s 134AB.
This proceeding
On 15 June 2011, the appellant issued this claim against his employer (the first respondent), a builder (the second respondent) and a scaffolder (the third respondent).[6]
[6]The second and third respondents did not participate in the hearing before Kaye J or on the Appeal. Each asserts that this issue is one between the appellant and the employer (first respondent) and will abide the decision of this Court.
In paragraph 17 of his statement of claim, the appellant alleges that, as a result of the fall, he suffered injury. Sub-paragraphs (a) to (m) of the particulars to that paragraph allege that the appellant suffered a number of organic injuries. They allege: injury to the left ankle (sub-paragraphs (a) to (c)), injury to the cervical spine (sub-paragraphs (d) to (i)), and injury to the lumbar spine (sub-paragraphs (j) to (m)). The next three particulars plead psychiatric injury, namely, a chronic major depressive disorder (sub-paragraph (n)), an anxiety disorder (sub-paragraph (o)), and ‘psychological injury including depression, anxiety and stress’ (sub-paragraph (p)).
In its defence, the first respondent denied that the appellant is entitled to bring proceedings in respect of the organic injuries specified in sub-paragraphs (a) to (m), on the grounds that the certificate, issued by the Authority to the appellant under s 134AB(16)(a)(ii) of the Act, was limited to psychological and/or psychiatric injuries arising from the consequences of the appellant’s physical injuries, which he sustained on 18 September 2006.
On 27 February 2012, Kaye J, on application made by the first respondent, struck out sub-paragraphs (a) to (m) of the particulars of injury contained in paragraph 17 of the appellant’s statement of claim. His Honour concluded that the appellant was prohibited by s 134AB from bringing a common law claim for damages other than in respect of psychiatric and psychological injuries. On 20 April 2012, leave to appeal this order was given to the appellant by Maxwell P and Bell AJA. This is the hearing of that appeal.
Principles of construction
In Project Blue Sky Inc v Australian Broadcasting Authority,[7] McHugh, Gummow, Kirby and Hayne JJ said in respect of the need to construe a statute as a whole:[8]
69The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[9] The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.[10] In Commissioner for Railways (NSW) v Agalianos,[11] Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[12]
70A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[13] Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.[14] Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’.[15] Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.[16] In The Commonwealth v Baume[17] Griffith CJ cited R v Berchet[18] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.
[7](1998) 194 CLR 355.
[8]Ibid [69]-[71].
[9]See Taylor v Public Service Board (NSW) (1976) 137 CLR 208, 213 (Barwick CJ).
[10]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ). See also South West Water Authority v Rumble's [1985] AC 609, 617 (Lord Scarman, ‘in the context of the legislation read as a whole’).
[11](1955) 92 CLR 390, 397.
[12]Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590, 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322, 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 312 (Gibbs CJ), 315 (Mason J), 321 (Deane J).
[13]Ross v The Queen (1979) 141 CLR 432, 440 (Gibbs J).
[14]See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135, 161 (Cooper CJ); Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 574 (Gummow J).
[15]Institute of Patent Agents v Lockwood [1894] AC 347, 360 (Lord Herschell LC).
[16]The Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ), 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1, 12-13 (Mason CJ).
[17](1905) 2 CLR 405, 414.
[18](1688) 1 Show KB 106 [89 ER 480].
In Lacey v Attorney-General of Queensland,[19] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ addressed the identification of statutory purpose as follows:
[19](2011) 242 CLR 573.
[43]The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority[20] as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have.[21] An example of a canon of construction directed to that objective and given in Project Blue Sky is ‘the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities’.[22] That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose.[23] Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.[24] As this Court said recently in Zheng v Cai:[25]
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs,[26] the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy.
[44]The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.[27]
[20](1998) 194 CLR 355.
[21]Ibid 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
[22]Ibid 384 (McHugh, Gummow, Kirby and Hayne JJ).
[23]Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 345–346 (McHugh J); [1991] HCA 28; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 (Lord Reid).
[24]Mills v Meeking (1990) 169 CLR 214, 226 (Mason CJ and Toohey J, Brennan J agreeing); Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 346 (McHugh J).
[25](2009) 239 CLR 446, 455–456 [28] (some footnotes omitted).
[26](2002) 123 FCR 298, 410–412.
[27]Lacey v Attorney-General of Queensland (2011) CLR 242 573, [43]-[44].
In Lacey, their Honours went on to discuss the operation of s 14A(1) of the Acts Interpretation Act1954 (Qld). This is the Queensland provision which requires a purposive construction to be given to Queensland statutes. Its equivalent in this State is s 35(a) of the Interpretation of Legislation Act1984. Section 35(a) relevantly provides that in the interpretation of Victorian statutes ‘a construction that would promote the purpose or object underlying the Act … (whether or not that purpose or object is expressly stated in the Act … ) shall be preferred to a construction that would not promote that purpose or object’.[28]
The legislative history of the serious injury provisions in s 134AB and the relationship between serious injury provisions and common law claims prior to the introduction of s 134AB
[28]See also s 35(b) which permits consideration being given to extrinsic materials.
Before addressing the terms and interrelationship of the relevant provisions of the Act, it is convenient to say something about the legislative history of s 134AB and the relationship between serious injury provisions and common law claims prior to the introduction of s 134AB.
The serious injury regime enacted in s 134AB is not new. Similar versions of the serious injury provisions in s 134AB had previously been enacted in s 135A of the Act (governing injuries arising in the course of employment between 1 December 1992 and 12 November 1997) and s 93 of the Transport Accident Act1986 (which applies to transport accidents that occurred on or after 1 January 1987).[29] In one form or another, serious injury provisions of the kind found in s 134AB have operated for in excess of 25 years.
[29]Sections 134AB(37) and (38) introduced significant refinements to the method by which a serious injury impairment or loss of function or severe mental or behavioural disturbance was to be established; but the serious injury regime is similar to that under s 135A.
Section 134AB of the Act was inserted into the Act by s 18 of the Accident Compensation (Common Law and Benefits) Act2000. That section reintroduced common law rights in certain circumstances for workers who suffered injury arising out of their employment on or after 20 October 1999 (such common law rights having previously been abolished in respect of injuries arising out of employment on or after 12 November 1997).[30]
[30]See now, Accident Compensation Act1985 (Vic) s 134A.
The Second Reading Speech of the Accident Compensation (Common Law and Benefits) Bill 2000, which introduced s 134AB,[31] discloses a detailed knowledge by the then Minister for WorkCover, Mr Bob Cameron, of the workings of the previously enacted serious injury provisions and the authorities concerning such cases.
[31]Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1001 to 1014 (Bob Cameron).
In the Second Reading Speech, Mr Cameron stated:[32]
The bill seeks to restore common-law rights for seriously injured workers who satisfy the former deeming test of 30 per cent or greater whole-person impairment which will now be assessed in accordance with the AMA Guides, fourth edition, and in the alternative, for workers who satisfy the narrative test of serious injury proposed by this bill. The government sees the deeming test to be the main gateway for access to common-law rights.
The previous narrative test for serious injury in section 135A of the Accident Compensation Act 1985 was identical to that which was first introduced in the Transport Accident Act 1986. The former government had little information on which to base a reliable estimate of the cost and little understanding of what was meant by serious injury when the serious injury test was introduced to the Workcover scheme. The Parliament gave the courts little guidance as to what was meant by the concept of serious injury in 1986 when it was introduced into the Transport Accident Act or when it was introduced into the Accident Compensation Act in 1992. The courts were effectively left to develop the meaning of the narrative test of serious injury. The overall result was a rapid increase in the number of common-law claims over the actuarial estimate and abolition of access to common-law damages by the former government.
The commitment of this government to restore common-law rights to seriously injured workers has an equal commitment to ensure that the costs of the restoration of common-law rights are confined and the number of common-law claims and the cost of those claims can be actuarially measured in a reasonably predictable manner. In order to achieve the objectives of government in relation to the restoration of common-law rights, the former narrative test of serious injury has been altered in a number of respects: firstly, with the intention of defining the meaning of serious injury; and secondly, with the intention of excluding the economic-loss basis on which certain types of applications were successful such as those approved by the Court of Appeal The State of Victoria v. Glover (Court of Appeal Supreme Court of Victoria, unreported, 7 October 1998) and Barlow & Anor v. Hollis (Court of Appeal Supreme Court of Victoria, unreported, 17 March 2000).
The narrative serious injury test contained in the bill has been codified to broadly reflect the test established by the full court in Humphries v Poljak (Full Court of the Supreme Court of Victoria 1992 2 VR at 129) as well as introducing a new loss of earning capacity consequence with a threshold of 40 per cent. Forty per cent is within the range of loss of earning capacity found by the full court in Petkovski v Galletti (Full Court of the Supreme Court of Victoria 1994 1 VR 436) to be very considerable.
[32]Ibid 1001-1002.
In addition to referring to Humphries v Poljak,[33] Petkovski v Galletti,[34] The State of Victoria v Glover,[35] and Barlow v Hollis,[36] Mr Cameron also referred to the decisions of Transport Accident Commission v Dennis,[37] Ninkovic v Pajvancek,[38] Woodhead v Barrow,[39] Mobilio v Balliotis,[40] Abela v Goodman Fielder Mills,[41] Cropp v TAC,[42] Rizza v Fluor Daniel GTI (Australia) Pty Ltd,[43] and Bentley v Furlan.[44] The Second Reading Speech and subsequent debates in relation to s 134AB demonstrate a sophisticated understanding of the way in which the serious injury provisions enacted in s 93 of the Transport Accident Act 1986 and s 135A of the Act had operated in this State in the years between 1987 and 2000.
[33][1992] 2 VR 129.
[34][1994] 1 VR 436.
[35][1998] VSCA 93.
[36](2000) 30 MVR 441.
[37][1998] 1 VR 702.
[38][1991] 2 VR 427.
[39](1993) Aust Torts Reports 81-238.
[40][1998] 3 VR 833.
[41][2000] VSCA 19.
[42][1998] 3 VR 357.
[43][1999] 1 VR 405.
[44][1999] 3 VR 63. See also the reference to Warren v Coombes (1979) 142 CLR 531, 552 in Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1005 (Bob Cameron).
There is no suggestion in the Minister’s speech that the s 134AB provisions were to operate as contended by the first respondent. To the contrary, the amendments were designed to restore the rights of injured workers, provided that one or other of the serious injury gateways was satisfied. The emphasis was not upon what injuries might be litigated at trial but rather the gateways to be accessed by the worker.
Under s 93 of the Transport Accident Act1986,[45] once a serious injury has been established,[46] then the practice has been for the claim in damages to not be confined solely to the relevant impairment or loss of function but for the claim to be in respect of all injuries sustained in the transport accident. This practice has continued from its inception to the present time.
[45]Section 93(2) of the Transport Accident Act provides:
(2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if—
(a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and
(b) the injury is a serious injury.
[46]In the sense of ‘long term serious impairment or loss of a particular body function’.
Similarly with s 135A of the Act, which was amended in 1992 to introduce a serious injury requirement,[47] the practice was the same: provided that a worker satisfied the requirements of s 135A(4) then the worker’s claim for common law damages relating to the work accident or process which was found to give rise to the existence of a serious injury (be it by deeming, certificate or leave of the Court) was the subject of the common law claim with the worker’s damages subsequently assessed on the basis of all injuries related to the event which produced the serious injury impairment. Literally thousands of claims resolved or proceeded to judgment (before judges or juries in both the County and Supreme Courts in this State) on this basis.
[47]Section 135A of the Accident Compensation Act 1985 relevantly provides:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment—
(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or
...
(3) If the Authority or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with section 91 be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
...
(4) If the Authority or self-insurer has determined in accordance with subsection (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(a) the Authority or self-insurer—
(i) is satisfied that the injury is a serious injury; and
(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b) a court, on the application of the worker made within 30 days after the determination was made or, with the consent of the Authority under subsection (6A), after that period, gives leave to bring the proceedings.
It may be added that the position up until the decision the subject of this appeal in actions brought under s 134AB has been the same.
It can be readily accepted that the existence over a lengthy period of time of a practice upon which the assessments of damages of thousands of injured workers or transport accident victims have been based does not, of itself, mean that the practice is lawful. But it may be relevant to the Parliament’s understanding of the operation of the serious injury gateways at the time s 134AB was introduced with the restoration of limited common law rights for injured workers.
In Shephard v Chiquita Brands South Pacific Pty Ltd,[48] Hill and Marshall JJ endorsed[49] a statement in Pearce and Geddes’ Statutory Interpretation in Australia that ‘[t]he courts adopt the general approach that whenever any legislation is re-enacted after being judicially interpreted, the legislature is to be assumed to have approved that interpretation’. While such an approach ‘should not lead the court to perpetuate the construction of a statutory provision which it considers to be erroneous’,[50] in our view there is much to be said for the approach referred to by Pearce and Geddes in this case. As we mentioned earlier, there have been no cases conducted pursuant to s 93 of the Transport Accident Act or s 135A of the Act, in which a plaintiff who has satisfied the narrative test has been denied the ability to claim common law damages in respect of any additional injury that was also suffered either in the compensable accident or process leading to the relevant common law proceeding. The high level at which the Second Reading Speech and debates concerning s 134AB were conducted makes it clear Parliament adopted the relevant terms of the statute in the context of the historical understanding of like provisions.
[48][2004] FCAFC 76.
[49]Ibid [19].
[50]Williams v Oataway (2005) 11 VR 529, 540 [20].
Even if one confines oneself to the cases explicitly referred to in the Second Reading Speech in relation to s 134AB, this point is made good. For example, in Petkovski v Galletti,[51] no issue was taken by the Full Court in relation to the form of the order of the County Court where the plaintiff had been given leave pursuant to s 93(4)(d) of the Transport Accident Act ‘to bring an action for damages for injuries received in a motor car accident on 19 June 1987’.[52]
[51][1994] 1 VR 436.
[52]The appeal was in fact allowed on different grounds relating to the way in which aggravations of pre-existing injuries were to be treated. See also Stone v Jarvis (one of the five cases making up Humphries v Poljak [1992] 2 VR 129) where the plaintiff sought leave pursuant to s 93(4) of the Transport Accident Act ‘to commence proceedings against the defendant for damages in respect of injury suffered by the plaintiff as a result of the transport accident which occurred on 28 February 1987 on the Calder Highway near Gisborne’. In that case, the judge at first instance made an order in terms ‘Leave be granted to the [plaintiff] to bring a claim for damages’ and the majority in the Full Court merely ordered that the appeal be dismissed with costs.
The construction of the serious injury provisions in s 93 of the Transport Accident Act and s 135A of the Act holding them to operate as gateway provisions[53] was well understood by the time s 134AB came to be enacted. Petkovski v Galletti was merely one of many cases where the Court order granting leave was expressed in terms of leave to bring a proceeding for injuries received in a specified accident. A further example of this can be found in the dissenting judgment of McGarvie J in Fleming v Hutchinson (one of the five cases making up the reported decision of Humphries v Poljak). McGarvie J concluded that he was satisfied that Ms Fleming had a serious long-term impairment of the body function involving the use of her right ankle and foot. In those circumstances, McGarvie J determined that it was not necessary to consider Ms Fleming’s left wrist injury - an injury that Ms Fleming also claimed satisfied the serious injury definition. While McGarvie J was in dissent as to the meaning of the word ‘serious’, the approach adopted by his Honour was not in issue in Humphries v Poljak (or indeed in any case prior to the enacting of s 134AB).
[53]Cf Wilson v Nattrass (1995) 21 MVR 41, 56 (Ashley J) and 59 (Hedigan J).
For the above reasons, the history of s 134AB supports the view we elaborate below as to the proper construction of s 134AB(1) and (2) read in the context of s 134AB as a whole and of the Act as a whole.
Section 134 AB of the Accident Compensation Act
We turn then to the relevant parts of the Act. It may be noted here that at the hearing before Kaye J attention was, in effect, solely focused on s 134AB(1) and (2). For reasons that will become apparent, we do not think that the determination of this question can be resolved simply by focusing on those two sub-sections. Rather, it is necessary to read the Act as a whole, and examine the broader context of s 134AB.
Nevertheless, it is appropriate initially to examine sub-ss (1) and (2) of s 134AB and their direct links to other provisions of the Act. Sub-sections (1) and (2) of s 134AB relevantly provide:
(1)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, employment on or after 20 October 1999 –
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except –
…
(iii)… as permitted by and in accordance with this section; and
(b)shall not, in proceedings in respect of the injury, recover any damages for pecuniary loss except –
…
(ii)… as permitted by and in accordance with this section.
(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.
Section 134AB(1) first defines the class of persons to whom it applies by reference to those who are 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.
This is a reference back to s 82(1) of the Act.
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. [54]
[54]Accident Compensation Act 1985 s 82. Note: Subsections (1) and (2), as amended by sections 3(3) and 3(4) of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003, only apply to injuries that occur on or after the date of commencement of s 3 of that Act—see s 262.
‘Injury’ is defined in general inclusive terms by s 5 of the Act:
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a)industrial deafness;
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;[55]
[55]Accident Compensation Act 1985 s 5.
The potential breadth of the notion of ‘an injury’ under s 82 is controlled by the causal connection stipulated. It is relevantly any physical or mental injury caused to a worker arising out of or in the course of any employment.
In Barwon Spinners Pty Ltd v Podolak,[56] the Court of Appeal stated of s 134AB(1):
[10]In short, in subs (1) we see no reason at all to conclude that ‘injury’ is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.[57]
[56](2005) 14 VR 622.
[57]Ibid [10].
As such, ‘an injury’ is a compendious term. Thus, if a worker has both his hands crushed at work he suffers ‘an injury’ within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or ‘injuries’ to particular bones, joints, tendons, nerves, vascular components, skin and nails of each hand.
An injury in this comprehensive sense is commonly described as the ‘compensable injury’[58] as it was in Barwon Spinners and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB.
[58]See A G Staff Pty Ltd v Filipowicz [2012] VSCA 60, [8], [30]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [9].
In Barwon Spinners Pty Ltd v Podolak,[59] the Court of Appeal further stated:
[13]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.[60]
[59](2005) 14 VR 622.
[60]Ibid [13].
In turn, ‘the injury’ as that term is used in s 134AB(1)(a) and (b) refers back to the compensable injury first identified in s 134AB(1) as ‘an injury’.
Likewise, s 134AB(2) refers to ‘an injury arising out of, or in the course of or due to the nature of, employment … on or after 20 October 1999.’ Once again, the concept of injury is defined in the first instance by the causal mechanism identified. ’An injury’ is again the relevant compensable injury.
Sub-section (2) further states the critical proviso ‘if the injury is a serious injury’. The concept of serious injury is also substantially defined by way of causal characteristics. Its meanings are defined by reference to specific consequences of a compensable injury.
Section 134AB(37) provides:
serious injury means—
(a)permanent serious impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.
It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak[61] in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected. Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition.[62]
[61][1992] 2 VR 129.
[62]Ibid 138 (Crockett and Southwell JJ); Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, 520 [27] (Chernov JA).
It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences.[63] Section 134AB(38) then goes on to make ‘elaborate provision’[64] for the assessment of those consequences.
[63]Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219, [71].
[64]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 [20].
In turn, it will be possible to determine whether a worker has suffered a serious injury by reference to a specific impairment of a body function, despite the fact that it may not be possible to determine which individual component or what combination of components of the compensable injury are causing that impairment.
Thus, an impairment or loss of function of the thumb and right hand may result from nerve damage at the spine, shoulder, elbow or wrist coupled with tendon damage at the shoulder, elbow or wrist. If the worker is able to establish impairment in the relevant sense, then he or she is seriously injured. It is not necessary to disaggregate the causal mechanism, provided that the compensable injury results in the impairment which satisfies the serious injury criteria set down by s 134AB.
The definition of serious injury is not like that of severe injury pursuant to s 99AAA, which refers to specific conditions such as paraplegia, quadriplegia, amputation of a limb, amputation of a hand or foot, severe head injury, severe eye injury, etc. Nor is it a descriptive categorisation of types of injury such as that contained in the table of maims set out in sch 3A[65] or in the total loss compensation table set out in sch 3B[66] of the Act. The definition of serious injury does not describe categories of injury but categories of harm consequential upon injury.
[65]See Accident Compensation Act 1985 s 98.
[66]See Accident Compensation Act 1985 s 98E.
In turn, although the literal language of s 134AB(1) and (2) may, at first reading, suggest a requirement for precise equivalence between ‘the injury’ and the ‘serious injury’, the requirement is properly understood as one that the compensable injury forming the subject of a potential common law claim be a serious injury in the sense that it results in consequences of the kind required by the definition of serious injury.
This conclusion flows from the concept of compensable injury which forms the starting point of s 134AB(1) and (2) coupled with the definition of serious injury, which is concerned not with the identification of individual injuries but with the identification of loss or impairment of a body function and other consequences flowing from an injury. It follows that it is not necessary that each component of the compensable injury satisfy the s 134AB(2) test separately.
Thus, to return to the example of the worker who suffers a crush injury to both hands, it is not necessary that the injury to each hand constitute a separate serious injury. It is not necessary that the injury to each finger constitute a serious injury. It is not necessary that the injury to each separately damaged bone, tendon, nerve, or vascular component of each hand constitute a separate serious injury.
Whilst a radiologist might identify separate injuries in the sense of locations of damage by reference to particular bones, joints, tendons or nerves indicated on X-ray, ultrasound or magnetic resonance imaging, and a plastic surgeon might identify separate injuries in the sense of locations of damage to particular nerves, tendons and skin identified during the course of surgery, nevertheless the matters referred to are properly regarded as aspects of a compensable injury suffered in the necessary causal circumstances.
There are, we would suggest, very real practical difficulties in adopting a different view. Whilst it may be possible to distinguish the three types of injury specifically referred to in the definition of injury from other sorts of injuries (industrial deafness, disease, and recurrences or aggravation of previous injuries) it is not to be assumed that the ‘injuries’ otherwise resulting from a particular accident or process can be readily disaggregated or localised. The facts in the present case enable a distinction to be readily drawn between organic physical injuries on the one hand and psychological and/or psychiatric injuries on the other. The construction for which the first respondent contends, however, would require differentiation between individual organic physical injuries which were or were not serious.
The human body is a complex multi cellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB. The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad commonsense way.
The same line of reasoning applies with even greater force in respect of psychiatric and psychological injuries. Whilst there are generally accepted standards for the formal diagnosis of separate mental or behavioural disturbances or disorders, the exercise of this Court’s criminal jurisdiction confronts it almost daily with cases of expert disagreement in respect of the characterisation of mental disorders by reference to one or more categories. For the purposes of sentencing it may often be unnecessary to arrive at a concluded diagnosis,[67] but if the first respondent’s construction of s 134AB(2) is correct it will be critically necessary to identify separate serious injuries for the purposes of an application under that section.
[67]Eg R v Knight [1989] VR 705, 708.
The certificate granted by the Authority in the present case eloquently illustrates the problem. It refers to ‘the injury (‘psychological and/or psychiatric injuries, including but not limited to depression, anxiety and stress, arising from the consequence of the physical injuries …’) alleged to have been sustained on or about 18 September 2006 …’.
A certificate in this form is entirely apt if it is granted in respect of the compensable injury as a whole. However, if the first respondent is correct in its construction of s 134AB(2), it identifies three serious injuries (namely anxiety, depression and stress) and accepts that the appellant suffers from further unspecified psychiatric injuries. Thus while purporting to be granted in respect of ‘the injury’ it is, as we understand the first respondent’s case, necessary to read it as being granted in respect of three or more serious injuries. The more probable view is that Parliament’s intention was that the relevant concept of injury was not to be disaggregated in this way.
The question of whether the compensable injury is one which is deemed to be serious is resolved procedurally by passage through one of a series of gateways. As we shall explain below, the gateways differ in their nature and it is explicit in the range of options that the deeming of a serious injury, as one of the gateways, may occur as a result of administrative assessment of the combined effect of all the components of a worker’s compensable injury.
This said, we accept that, as a matter of language, a worker may often be said both to have suffered ‘an injury’ embracing multiple elements or alternatively ‘multiple injuries’. The sense in which the term ‘injury’ is used will depend upon its context.
We have referred to several decisions of the High Court which emphasise the need to examine the text and context of the relevant provisions so as to determine the purpose of the legislature. When s 134AB is read as a whole with the other provisions of the Act, and the contextual evidence bearing on Parliament’s intention at the time of the implementation of s 134AB, the purpose of the Act can be ascertained and given effect.
It is plain that s 134AB(2) was intended to prevent workers from bringing common law claims in circumstances where they had suffered only minor injuries. There is no dispute in this respect.
The first respondent contends that the further purpose of s 134AB(2) is to limit the rights of the worker to claim damages to claims in respect of those components or elements of injury which are themselves individually serious.
The first respondent adopts the construction articulated by Kaye J in his judgment at first instance:
15It is important to note, first, that subsection (1) relates expressly to claims in respect of ‘an injury’. It prohibits the institution of proceedings, in respect of that injury (‘the injury’) except as permitted by the section. Subsection (2) specifies when s 134AB permits such proceedings to be brought. It is expressed in clear terms, and provides that a worker may recover damages in respect of ‘an injury’ if that injury (‘the injury’) is a serious injury and arose on or after 20 October 1999.
16Thus expressed, subsection (2), on its face, only authorises the recovery of damages, in respect of an injury, if that injury is a serious injury. A determination by a court that an injury is a serious injury, or a certification or deeming that an injury is a serious injury, under s 134AB, does not operate to overcome the prohibition, expressed in subsection (1), against the recovery of damages in respect of any other injury. Accordingly, on a plain construction of subsection (2), a worker may only recover damages in respect of an injury, if that particular injury is a serious injury.[68]
[68]Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56, [15]-[16].
There are two further alternative constructions. The appellant submits in part that because the singular includes the plural,[69] the references to ‘an injury’ and ‘the injury’ contained in sub-ss (1) and (2) may be read to refer to ‘injuries’ plural. This is undoubtedly correct but it may not resolve the question in issue in the present case. If ‘an injury’ is read as ‘injuries’, then the question remains whether it is sufficient for the injuries to comprise within them or result in a serious injury, or rather whether s 134AB(2) requires that each identifiable separate injury have consequences which render it a serious injury.
[69]Interpretation of Legislation Act 1984 s 37.
The third view is the one which the appellant submits in the alternative and which we have already indicated is our preferred view for the reasons stated above, namely, that ‘the injury’ is the compensable injury in the sense of the total injury suffered in the relevant compensable circumstances. The requirement that it be a serious injury is a requirement that the compensable injury result in consequences which constitute a serious injury. In this sense it must comprise a serious injury.
It is necessary to return to the contextual matters we have identified to elaborate our reasons with respect to the purpose of s 134AB(2).
As we have explained, in the first instance we prefer the view that s 134AB(2) requires that the consequences of a compensable injury qualify as a serious injury because of the coupling of the notion of compensable injury derived from s 82 and the notion of serious injury as defined by s 134AB(37).
The view we take of the purpose of s 134AB(2) also results in the harmonious operation of a series of further provisions within s 134AB, whilst, conversely, the first respondent’s construction gives rise to a series of difficulties. It may be that none of these matters taken individually could be regarded as being of determinative weight but taken together they strongly favour the construction we prefer. The relevant matters as they arise sequentially under s 134AB are as follows:
(a) s 134AB(15) provides for one of the gateways by which a worker may establish that he or she has suffered a ‘serious injury’ for the purposes of the Act. It follows from the scheme of that sub-section that ‘the injury’ which may be deemed to be a serious injury is the compensable injury and not individual aspects or components of the compensable injury. The use of the term ‘the injury’ in s 134AB(15) thus accords with the meaning we prefer for that term in s 134AB(1) and (2);
(b) the ceiling imposed by s 134AB(22) on the damages recoverable in respect of pecuniary loss claims and pain and suffering damages operates in respect of ‘an injury’. If the first respondent is correct, the worker will be able to recover up to the ceiling in respect of each injury which constitutes a serious injury and comprises part of a compensable injury;
(c) s 134AB(23) strongly supports the conclusion that the Act treats the steps taken before common law proceedings as wholly irrelevant to those common law proceedings. In turn, it is no part of the common law proceeding to determine what constitutes a serious injury; and
(d) s 134AB(36) terminates payments of compensation in respect of ‘an injury’ following a settlement or judgment of a common law claim. If the first respondent’s contention is correct, liability will continue in respect of any injuries not themselves constituting serious injuries and hence forming the subject of the common law claim.
We shall elaborate each of these points.
Sections 134AB(15) and 104B
There are five different ways in which a serious injury may be established for the purposes of the Act. One of these is s 134AB(15) which provides:
If the assessment under section 104B made before an application under subsection (4)[70] is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
[70]The application ‘under sub-section (4)’ referred to in sub-s (15) is an application to commence a relevant claim for damages.
In Maurice Blackburn Cashman v Brown,[71] the High Court summarised the gateways other than s 134AB(15) in the following terms:
[71](2011) 242 CLR 647.
The other ways in which ‘serious injury’ could be established were:
(a)under subs (7)(a), by the Authority (or a self-insuring employer) advising the worker, as a result of a determination under s 104B of the degree of impairment of the worker, “that the worker is deemed to have a serious injury”; or
(b)under subs (7)(b), by the Authority (or a self-insuring employer) issuing a certificate under s 134AB(16)(a) that it was “satisfied that the injury is a serious injury”; or
(c)under subs (9), by the worker being deemed to have a serious injury if the Authority (or a self-insuring employer) failed to advise the worker, within a fixed time of its decision, whether the worker had a serious injury; or
(d)under subs (19)(a), by a court, other than the Magistrates’ Court, on an application of the worker being “satisfied on the balance of probabilities that the injury is a serious injury”.
In the case of subs (19)(a), the court would give leave, under subs (16)(b), to the worker to bring a proceeding.[72]
[72]Ibid [21]-[22].
The reference to ‘the injury’ in s 134AB(15) must be one to the compensable injury as a whole because the procedure which is adopted by that sub-section for the purpose of deeming the injury to be a serious injury is one which is expressly directed to all of the injuries arising out of the same event or circumstances. The injury which is deemed to be a serious injury is thus the compensable injury. In turn this supports the view that the requirement contained in s 134AB(2) that ‘the injury’ be a serious injury is concerned with the compensable injury as a whole.
Section 104B of the Act to which sub-s (15) refers deals in the first instance with claims for compensation under s 98C.
Section 98C(1) provides:
(1)A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
Compensation under s 98C(1) is based upon a worker’s impairment benefit rating which may be calculated based upon the worker’s whole person impairment assessed in accordance with the AMA Guides as modified by s 91 or any relevant regulation.[73]
[73]Accident Compensation Act 1985 s 98C.
Section 104B relevantly provides:
…
(5)The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of-
(a)determining any entitlement of the worker to compensation under section 98C;
(b)determining the whole person impairment under sections 134AB(3) and 134AB(15);
(c)Subdivision 1 of Division 3A.
(5A)A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
(5AA)A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
…
(5B)A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
(5C)If the independent examination has been requested by the Authority or a self-insurer under subsection (1C), the Authority or self-insurer must give the worker a written statement of the injury or injuries to be included in the assessments and a statement of rights in a form approved by the Authority for the purposes of this section.[74]
[74]Emphasis added.
An assessment made for the purposes of s 98C (as contemplated by s 104B(5)(a)) is one of whole person impairment assessed in accordance with the AMA Guides as modified by s 91 or any relevant regulation. Likewise, s 104B(5)(b) refers expressly to ‘determining the whole person impairment’[75] of a worker for the purposes of s 134AB(3) and 134AB(15).[76] The assessment of whole person impairment takes into account each of the injuries sustained by the worker in a relevant work accident or process. The Authority, or a medical panel, makes the determination of impairment.[77]
[75]Emphasis added.
[76]Section 134AB(3)(a) provides:
(3) Subject to subsection (4A), a worker may not bring proceedings in accordance with this section unless—
(a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or
[77]Accident Compensation Act 1985 s 104B(9).
One example suffices to illustrate the miscellany of injuries which can result in a whole person impairment. In Gamble v Emerald Hill Electrical Pty Ltd,[78] the medical panel determined whole person impairment in the following fashion:
In the Panel’s opinion the worker has a 35% whole person impairment resulting from the accepted head injury including blurred vision, loss of hearing and memory loss, spine, scarring, autonomic dysfunction resulting in syncope due to postural change injuries [sic] when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The Panel is also of the opinion that there is a 0% psychiatric impairment resulting from the accepted psychiatric injury, when assessed in accordance with Section 91(2) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.
For the purposes of Sections 134AB(3) & (15) of the Act there is a combined whole person impairment of 35% resulting from the accepted physical and psychiatric injuries. The degree of impairment is permanent within the meaning of the Act.[79]
The worker’s challenge to the whole person impairment assessment of the panel was dismissed.
[78][2010] VSC 611. See also Nicholls v Corlett [2010] VSC 115.
[79]Gamble v Emerald Hill Electrical Pty Ltd [2010] VSC 611, [3].
Thus for a worker, such as Mr Gamble, s 134AB(15) treats ‘the injury’ in a compendious way permitting recovery of damages for all the injuries sustained in the workplace accident or process.
There is no apparent reason why ‘the injury’ should be understood to comprise the compensable injury (including all its components) where that phrase is used in s 134AB(15) but to constitute each identifiable component of a compensable injury constituting a serious injury where that phrase is used in s 134AB(1) and (2). The better view is that the term ‘the injury’ is intended to refer to the compensable injury in both contexts.
The ceiling
Section 134AB(22) places a statutory ceiling on pecuniary loss damages and pain and suffering damages which a court may award in respect of ‘an injury’.[80] If the first respondent’s contention be accepted (requiring a worker to seek certification or leave in respect of separate serious injuries forming part of the compensable injury in order to bring a common law claim for damages) each injury determined to be serious would, accepting the logic of the first respondent’s argument, be the subject of a separate ceiling.
[80]Accident Compensation Act 1985 s 134AB(22) provides:
(22)A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury—
(a)pecuniary loss damages—
(i)if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $52 220 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or
(ii)in excess of $1 175 820 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or
(b)pain and suffering damages—
(i)if the total pain and suffering damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $50 440 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or
(ii)in excess of $511 920 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or
(c)damages of any other kind, other than damages in the nature of interest.
The first respondent’s construction also results in a further odd consequence which can be illustrated this way. If a single injury to the neck causes quadriplegia then, as we understand the first respondent’s construction, such an injury would result in a single cap on damages for non-economic loss recoverable in a common law claim. The fact that it results in loss or impairment of more than one body function will not transform it into more than one injury.
If, however, a worker suffered burns resulting in the loss of the toes on each of his feet and the fingers on each of his hands, the first respondent’s construction would both allow and require claims in respect of each foot and hand together with a claim for consequent disfigurement (if that be sufficiently serious) and psychiatric sequelae (if they be sufficiently serious). The worker would thus potentially recover up to six times the cap provided for in s 134AB(22). He or she would recover pecuniary loss damages in respect of each injury constituting a serious injury. It is difficult to accept that separate injuries resulting from a single compensable accident or process should result in so disproportionate an outcome to that available for a quadriplegic or other person suffering catastrophic consequences from a single injury. The damages available for a compensable injury in the sense we have used that term would vary widely dependent upon the extent to which it was constituted by separate serious injuries in the sense for which the first respondent contends.
The s 134AB(16)(a) certificate granted in the present case illustrates the point, as it demonstrates the type of certificate commonly granted by the Authority. Is it, as we would construe it, a certificate in respect of the compensable injury as a whole or is it a certificate in respect of at least three separate serious injuries (‘including but not limited to depression, anxiety and stress’)? If the first respondent’s view of s 134AB is correct, how are non-serious aspects of the compensable injury to be disaggregated from the mental disturbances and disorders constituting separate serious injuries for the purposes of both ss 134AB(2) and (22)?
Notwithstanding the use of the expression ‘an injury’ (singular) in s 134AB(22) and the prior requirement that ‘the injury’ be a ‘serious injury', the better view is that the ceiling in s 134AB(22) relates to the compensable injury globally. This view is consistent with the view we take of the effect of ss 134AB(1) and (2). It is, however, inconsistent with the first respondent’s construction of s 134AB(2). The construction we prefer provides an integrated scheme with respect to the compensable injury.
Section 134AB(23)
Section 134AB(23) provides:
In the trial of a proceeding brought under this section, a jury must not be informed—
(a)of the monetary thresholds and statutory maximums specified by or under subsection (22); or
(b)that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury; or
(c)that the Authority or self-insurer has been satisfied that the injury is a serious injury; or
(d)that the Authority or self-insurer has issued a certificate under subsection (16)(a).
Support for the construction we prefer can be found in the High Court’s treatment of s 134AB(23) in Maurice Blackburn v Brown.[81] The Court said:
When read as a whole, sub-section (23) points strongly to the conclusion that the Act treats the steps taken under the Act before common law proceedings may be brought as wholly irrelevant to those common law proceedings. That is, the matters mentioned in sub-section (23) are not to be mentioned to the jury because they are irrelevant.
Apart from sub-sections (19)(c) [now repealed] and (23), nothing in the provisions of section 134AB with respect to the determination or deeming of the existence of a serious injury speaks in any way to the conduct of an action brought in accordance with section 134AB(2).[82]
[81](2011) 242 CLR 647.
[82]Ibid 658 [27]-[28].
Acceptance of the first respondent’s construction would give rise to the possibility of debate at trial as to whether particular injuries or aspects of injury come within the terms of the certificate issued by the Authority or the leave granted by a court. In some of these cases, there may be disputed questions of fact. How these could be resolved by a jury (in many cases the fact finding tribunal) in the face of s 134AB(23) is unclear. The construction we prefer separates the question of serious injury entirely from the subsequent common law claim in respect of the compensable injury.
Deductions of payments of compensation
Furthermore, on the first respondent’s construction a potential problem may arise in relation to the termination of payments pursuant to s 134AB(36) of the Act which occurs as a result of settlement or judgment. Section 134AB(36) provides:
(36)If judgment is obtained, or a compromise or settlement made in respect of proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable—
(a)where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or
(b)where pain and suffering damages are awarded, to make payments under section 98C or 98E in respect of the injury.
The sub-section refers to payments of compensation in respect of ‘an injury’. The problem which arises is that payments of compensation by the Authority or self-insurer may well be payable in relation to components of an injury or injuries not determined to be ‘a serious injury’ and thus not the subject of a judgment or settlement. In those circumstances, if the logic of the first respondent’s argument holds good, the liability to continue to make weekly payments or payments under s 98C or 98E would continue. On the first respondent’s construction, the relevant ‘proceedings’ must be those involving a separately identifiable serious injury or serious injuries. Once again, we doubt that this was Parliament’s intention. Conversely if ‘an injury’ is understood to mean a compensable injury which results in consequences rendering it a serious injury, the scheme of the Act operates sensibly.
It follows that in our view the provisions of the Act as a whole and s 134AB in particular favour the construction which we prefer.
Other submissions of the first respondent
In argument, senior counsel for the first respondent raised a further proposition on its behalf. It was submitted that it was necessary to identify the sense in which an injury was serious by reference to one or more of the four categories set out in the definition of serious injury. As a result, it was necessary to identify whether an injury was serious by reason of impairment or loss of bodily function, permanent disfigurement, or permanent serious mental disturbance or behavioural disorder. In turn, it was submitted that a plaintiff could only claim damages in respect of an injury insofar as that injury was serious in the identified sense.
Senior counsel provided an example of how the first respondent’s contended construction would work by submitting that if a worker fell from a scaffold and suffered head injuries, the worker would need to establish that the injuries were serious in respect of each of the first three components of the definition of serious injury before he could claim damages for each component.
Thus, the worker might establish serious impairment or loss of bodily function but would not be able to claim for disfigurement resulting from facial injuries unless that disfigurement was itself permanent serious disfigurement. Nor could a claim be made for consequent mental disturbance unless that disturbance was itself both permanent and severe.
In addition to the matters to which we have already referred, the terms of s 134AB(38)(h) and (i) of the Act tell strongly against this construction.[83] If it were correct that s 134AB(2) requires that each aspect of an impairment be classified as a serious injury then it would be unnecessary to provide that the psychological consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of serious injury. Likewise, s 134AB(38)(i) would be unnecessary. We would therefore reject the supplementary submission.
[83](h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;…
Lastly, we record for completeness that in support of its contentions, the first respondent also took us to the definition of ‘injury’ in s 4(1) of the Safety, Rehabilitation and Compensation Act1988 (Cth), Canute v Comcare,[84] this Court’s decision in Barwon Spinners Pty Ltd v Podolak,[85] and the decisions of Kruisselbrink v Nationwide Management Services Pty Ltd,[86] Ronchi v Alcoa Portland Aluminium Pty Ltd[87] and Harvey v Methodist Ladies College.[88] None of these decisions deal with the issue the subject of this appeal.
[84](2006) 226 CLR 535, and in particular at [10].
[85](2005) 14 VR 622.
[86][2010] VSC 260.
[87][2007] VSC 340.
[88][2008] VSC 425.
The definition of ‘injury’ in the Safety, Rehabilitation and Compensation Act is different from the definition in s 5(1) of the Act. Further, the different definition of ‘injury’ in the Commonwealth Act falls to be applied in a different statutory scheme. In our view, the first respondent derives no benefit from reference to the Commonwealth Act or the decision in Canute v Comcare in which the Commonwealth definition and scheme are considered.
Barwon Spinners is similarly of no assistance to the first respondent, it being a case concerning the proper approach to be taken by a court in considering a serious injury application – that is, the approach to be taken when deciding whether a worker has or has not satisfied the statutory test for serious injury. Barwon Spinners does not resolve the issue the subject of this appeal although as we have said it supports the view that the starting point must be the notion of compensable injury.
Likewise, the decisions of Kruisselbrink, Ronchi and Harvey are not determinative of the present issue. Those cases concern the parameters of the compensable accident or process underlying the relevant claim and/or whether the particular worker was seeking to amend to recover damages for an injury not arising out of the alleged event that gave rise to the relevant injury.
Conclusion
The appeal should be allowed. In lieu of the order made below, there will be an order that the first respondent’s application will be dismissed.
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