Metro Trains Melbourne Pty Ltd v Graeme Allan Keay
[2023] VSCA 223
•15 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0027 |
| METRO TRAINS MELBOURNE PTY LTD | Applicant |
| v | |
| GRAEME ALLAN KEAY | Respondent |
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| JUDGES: | BEACH JA, J FORREST and TSALAMANDRIS AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 August 2023 |
| DATE OF JUDGMENT: | 15 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 223 |
| JUDGMENT APPEALED FROM: | [2023] VCC 17 (Judge Davis) |
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ACCIDENT COMPENSATION – Workplace injury – Serious injury – Injury arising from a transport accident – Psychiatric injury – Psychiatric injury resulting from multiple transport accidents – Whether open to worker who suffers injury arising from multiple transport accidents to make serious injury application under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 – Whether worker who suffers injury arising from multiple transport accidents required to make application under s 93(4)(d) of the Transport Accident Act 1986 – Interaction between provisions of Transport Accident Act 1986 and Workplace Injury Rehabilitation and Compensation Act 2013.
Accident Compensation Act 1985, ss 4(1)(a), 134AA and 134AB, Transport Accident Act 1986, s 93, Workplace Injury Rehabilitation and Compensation Act 2013, ss 5(1), 326 and 335.
Belgrave Heights Christian School v Moore [2020] VSCA 240, Primary Health Care Ltd v Giakalis (2013) 38 VR 165 applied.
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| Counsel | ||
| Applicant: | Mr SE Gladman | |
| Respondent: | Mr JP Brett KC with Ms M Williams | |
Solicitors | ||
| Applicant: | Wisewould Mahony | |
| Respondent: | Ryan Carlisle Thomas | |
BEACH JA
J FORREST AJA
TSALAMANDRIS AJA:
Between 2005 and April 2015, Graeme Keay, the plaintiff, was employed by Metro Trains Melbourne Pty Ltd, the defendant, as a train driver. In the course of that employment, he sustained a psychiatric injury as a result of being involved in a series of traumatic incidents.
On 17 August 2020, the plaintiff commenced a proceeding in the County Court against the Transport Accident Commission (‘the TAC’) seeking leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the TA Act’), to commence a proceeding for the recovery of common law damages in respect of a psychiatric injury suffered as a result of a transport accident on 17 November 2014 (‘the TAC proceeding’).
The TAC proceeding was heard by Judge Coish on 30 April 2021. Prior to the conclusion of the hearing, the judge invited the plaintiff to consider whether he ought to proceed with his application under the TA Act in respect of the 17 November 2014 transport accident, or whether he should make an application under the Accident Compensation Act 1985 (‘the AC Act’) in respect of the cumulative impact on him of all of the traumatic incidents in which he had been involved during the course of his employment with the defendant. The further hearing of the TAC proceeding was then adjourned to enable the plaintiff to consider his position.
On 29 September 2021, the plaintiff commenced a second proceeding in the County Court (‘the VWA proceeding’). In that proceeding, the plaintiff sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the AC Act’), to commence a proceeding for the recovery of common law damages in respect of the psychiatric injuries he had sustained over the course of his employment with the defendant.
On 28 November 2022, the remainder of the TAC proceeding and the VWA proceeding were heard by Judge Davis.[1] On 25 January 2023, her Honour granted the plaintiff’s application in each proceeding.[2]
[1]His Honour Judge Coish had retired. It was agreed between the parties that the evidence given before Judge Coish in the TAC proceeding would stand as evidence in both proceedings.
[2]In the TAC proceeding, see Keay v Transport Accident Commission [2023] VCC 18. In the VWA proceeding, see Keay v Metro Trains Melbourne Pty Ltd [2023] VCC 17 (‘Reasons’).
The defendant now seeks leave to appeal against the orders made by her Honour in the VWA proceeding. In its proposed ground of appeal, the defendant contends that her Honour erred in concluding that it was open to the plaintiff to make a serious injury application under s 134AB of the AC Act in circumstances where each of the incidents relied upon by the plaintiff as giving rise to a psychiatric injury was a transport accident within the meaning of the TA Act.
Relevant background
In support of his application in the TAC proceeding, the plaintiff swore two affidavits: the first on 15 May 2020, and the second on 14 April 2021. In support of his application in the VWA proceeding, the plaintiff swore two further affidavits: the first on 27 May 2021, and the second on 4 July 2022.
In his first affidavit, the plaintiff deposed to being a train driver for 35 years until he ceased work in 2015 because of an incident at work on 17 November 2014 (the transport accident which was the subject of the TAC proceeding). The plaintiff said that, over the years as a train driver, he had been involved in a number of serious incidents while he was driving trains, some of which involved fatalities. He said:
I don’t remember all of the details but I certainly was involved in a fatality at work in late 1992 and again, I believe, in 1993. I have had other occasions when there were near misses and I have had to take time off work on several occasions because of the stress and the onset of depression following these incidents. There was another incident in early 2009 when a truck blocked the tracks and I thought there was going to be a collision but in the end no one was injured. It was still a very distressing event. I have had other situations like this but I’ve always been able to get back to work previously. I can remember there was a near miss in 2013 on a level crossing and another one in early 2014. I had some time off work following both of those incidents.
In his first affidavit, the plaintiff then described the transport accident of 17 November 2014 as follows:
On 17 November 2014 I was on the Packenham line coming from Caulfield. As I approached the Grange Road crossing a car, with a mother and two children in it, became trapped on the railway tracks and the boom gate came down. I could see the mother frantically trying to move the car and I applied the brakes on the train as much as possible and I was able to stop before I hit the car, but only just. If I had not been able to stop I would have hit the car head on and I have no doubt that the occupants would have either been killed or very badly injured. As I came to a stop the boom gates then opened and the car drove off … . I was able to continue to Malvern Station and then I was relieved. I went to the city and reported the incident and I was sent home. I was extremely upset about this incident.
In his second affidavit, the plaintiff said that before the November 2014 incident, he had been exposed to a number of traumatic accidents and near misses in his role as a train driver. He said the general pattern was that, after these incidents, he experienced psychological symptoms such as nightmares. He also ruminated about the particular incident and would attend a doctor’s surgery to discuss his condition. After a short period of work and counselling, the symptoms more or less resolved and he was able to return to work. He said that, in short, he had a couple of weeks off work after each incident but was then able to ‘bounce back’. He said that he ‘certainly did not suffer from any incapacitating psychiatric symptoms prior to the November 2014 incident’. He described the difference after the November 2014 incident as ‘stark’. He said he never got over what occurred and, unlike previous incidents, he was not able to stop thinking about the November 2014 incident.
In his third affidavit (the first affidavit which the plaintiff swore in the VWA proceeding), the plaintiff referred to his earlier affidavits before saying that he had been exposed to numerous traumatic incidents at work, involving fatalities and near miss fatalities, while performing his normal duties as a train driver. He said that he lodged ‘incident reports and/or WorkCover claims for all of the incidents involving fatalities or the near-miss accidents’. He also said that he reported some of these incidents to his general practitioner, but not all of them; and that his general practitioner had treated him for his ‘psychological condition over the years’. He said he did not believe that he had been prescribed any medication or offered any counselling until the 17 November 2014 incident. He then said:
The defendant had an expectation that we just get on with the job and drive the trains, so I may have had some time off work following some of the incidents, but I just kept working over the years. …
The near miss accident that happened on 17 November 2014 was the last straw for me. I tried to go back to work after this incident but by April 2015 I could no longer cope because of my psychological condition, so I stopped working as I was worried that I would be a danger to people if I kept driving because of my psychological state. I have not returned to any form of employment since.
In his fourth affidavit (the second affidavit sworn by the plaintiff in the VWA proceeding), the plaintiff referred to his continuing difficulty with sleep, nightmares and his psychological injuries. He said the nightmares were ‘usually about the fatalities or near-miss incidents [he] had with the trains’.
Relevant statutory provisions
Section 93(1) of the TA Act provides:
(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.
Section 3(1) of the TA Act defines the expression ‘transport accident’ to mean ‘an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram’.
While the plaintiff made his application in the VWA proceeding pursuant to s 134AB(16)(b) of the AC Act, the parties now agree that this application should have been made under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’). This is because the plaintiff’s case is that he sustained an injury arising out of, or in the course of, or due to the nature of, his employment performed both before and after 1 July 2014.[3]
[3]See s 5(1) of the WIRC Act and s 4(1)(a) of the AC Act.
While the VWA proceeding was conducted on the basis that ss 134AA and 134AB of the AC Act applied, the parties accept that the plaintiff’s entitlement to claim common law damages in respect of his claimed psychiatric injury is governed by the provisions of Division 2 of Part 7 (containing ss 324 to 356F) of the WIRC Act. Nothing turns on this because, so far as the present case is concerned, those provisions are relevantly identical to the provisions of the AC Act which deal with the same subject matter and which were the subject of the submissions made to the primary judge and the Reasons.
Section 326 of the WIRC Act (the equivalent of ss 134AA and 134AB of the AC Act) relevantly provides:
326 Actions for damages
A worker who is, or the dependants of a worker 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 must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except —
(a)if the injury arises from a transport accident —
(i)in accordance with the Transport Accident Act 1986and sections 343 and 347(1) of this Act; or
…
(c)as permitted by and in accordance with this Division, Division 3 or section 366.
Primary judge’s reasons
As we have already observed, in the TAC proceeding, the judge granted the plaintiff’s application pursuant to s 93(4)(d) of the TA Act to commence a proceeding for the recovery of common law damages in respect of the psychiatric injury suffered by the plaintiff as a result of the transport accident that occurred on 17 November 2014. No complaint is made in this Court about the making of that order. It is the making of the order granting the plaintiff leave pursuant to s 134AB of the AC Act to issue a proceeding claiming common law damages in respect of the psychological injury suffered by the plaintiff during the course of his employment with the defendant which is the subject of challenge by the defendant in this Court.
The judge commenced her reasons for decision in the VWA proceeding with a description of the procedural history and the evidence tendered on the application. After referring to the plaintiff’s affidavits, the judge noted that the plaintiff, who in cross-examination was taken to a number of WorkCover stress claims made by him after 2005:
•recalled a ‘suicide by train’ at Cheltenham in January 2008, after which he saw a doctor and returned to work after a few weeks;
•recalled a ‘near miss’ on 28 January 2009, and said he thought he saw a psychiatrist twice after that incident;
•did not recall a claim in respect of a ‘near miss’ in early June 2010;
•recalled a ‘near miss’ on 15 February 2013 when a person tried to commit suicide by train but he [the plaintiff] was able to brake in time to avoid striking the person;
•recalled a further ‘near miss with a truck on 13 September 2013 at a level crossing and managed to stop the train’; and
•recalled a further incident on 14 January 2014 ‘where a person ran in front of his train at a level crossing and was clipped by the train but able to crawl away’.[4]
[4]Reasons, [5].
After dealing with the evidence, the judge summarised the parties’ submissions. Relevantly for present purposes, the judge identified a submission made by the defendant that each of the incidents relied upon by the plaintiff must be treated as a transport accident; and that, in accordance with this Court’s decision in Belgrave Heights Christian School v Moore,[5] the TA Act does not permit an injured person to combine the effects of multiple transport accidents and to sue in respect of an injury said to have resulted from the totality of those transport accidents.[6]
[5][2020] VSCA 240 (‘Belgrave Heights’).
[6]Reasons, [32].
The judge then identified the plaintiff’s submission on this issue, that there was no barrier to an application made under s 134AB(16)(b) the AC Act, as the application was framed as one for ‘psychological injury sustained during the course of employment which came to a head after the November 2014 near miss’.[7] The plaintiff also relied upon the decision in Belgrave Heights. In that case, the plaintiff (Ms Diane Moore) suffered a back injury during the course of her employment, when her bus regularly passed over uneven terrain and her back was jolted. She was given leave to commence a proceeding pursuant to s 134AB(16)(b) of the AC Act.[8] This factual scenario, it was said, was analogous to the multiple psychological injuries of the plaintiff in this case caused by the ‘near misses’.
[7]Ibid [36].
[8]Ibid.
The judge accepted the plaintiff’s submissions, saying that although Belgrave Heights involved physical injury, the reasoning in it was ‘equally applicable to psychological injury suffered as a result of multiple exposure to traumatic incidents’.[9] The judge considered that it was open to the plaintiff to make a serious injury application under s 134AB(16)(b) of the AC Act, in circumstances where ‘the appropriate characterisation of the incidents relied upon … by the plaintiff is that of psychological injury occasioned by a system of work in which he [the plaintiff] suffered multiple traumas in the course of employment, which culminated, after the incident of 17 November 2014, in PTSD and/or an adjustment disorder whose severity made him permanently incapable of any work, and also seriously impacted his enjoyment of life’.[10]
[9]Ibid [43].
[10]Ibid [43]–[44].
Proposed ground of appeal
The defendant’s proposed ground of appeal is as follows:
1.The primary judge erred in concluding at Reasons [43] that it was open to the plaintiff to make a serious injury application under s 134AB of the AC Act in circumstances where:
(a)each of the incidents that had given rise to the psychological injury sustained by the plaintiff throughout the course of his employment with the defendant was a ‘transport accident’ within the meaning of the TA Act; and
(b)accordingly, pursuant to ss 134AA and 134AB(1) of the AC Act,[11] any entitlement that the plaintiff might have had to bring proceedings for the recovery of damages in respect of that psychological injury was governed exclusively by the provisions of the TA Act.
[11]Relevantly re-enacted in s 326 of the WIRC Act: see paragraph [16] above.
Defendant’s submissions
The defendant submitted that, contrary to the view expressed by the judge at Reasons [43], the reasoning in Belgrave Heights was not ‘equally applicable to psychological injury suffered as a result of multiple exposure[s] to traumatic incidents’. The defendant submitted that, in Belgrave Heights, this Court’s conclusion that the plaintiff had properly made her initial serious injury application under s 134AB of the AC Act was based on its logically anterior finding that her injury was not the result of any transport accident. In the present case, however, each traumatic incident was a separate transport accident and the psychiatric injury sustained by the plaintiff was therefore the result of multiple transport accidents. The defendant submitted that the judge should therefore have concluded that it was not open to the plaintiff to make a serious injury application under s 134AB of the AC Act.
Plaintiff’s submissions
The plaintiff submitted that the compensable injury for which he seeks leave to commence a common law proceeding is a psychiatric injury which arose by reason of the cumulative effect of repeated exposure to traumatic incidents in the course of his employment as a train driver. He submitted that the cause of action he wishes to rely on is governed by the serious injury gateway provisions of the WIRC Act. He contended that it was open to him to bring his cause of action under the WIRC Act, notwithstanding that he may have a separate right to access the gateway provided by s 93 of the TA Act. He said that, in Belgrave Heights, this Court ‘made clear that the relevant consideration is for what cause of action leave is being sought’.[12] Properly analysed, he said, his injury arose from a process which exposed him to a number of transport accidents; and that he was entitled to make his serious injury application in respect of the injury that resulted from the defendant exposing him to that process.
[12]In support of that statement, the plaintiff relied upon Belgrave Heights at [47] and [71].
Next, the plaintiff submitted that the fact that the individual incidents which occurred in the course of his employment fell within the definition of transport accidents did not foreclose consideration of whether the claim sought to be brought by him, properly analysed, was governed by the TA Act or the WIRC Act.[13] He submitted that the answer would depend on the facts and circumstances giving rise to the compensable injury for which leave is sought; and that if, as in the present case, psychiatric injury is alleged to have arisen by reason of the cumulative effect of repeated exposure to traumatic incidents throughout the course of employment, the relevant gateway will be that provided by the WIRC Act — even if the incidents considered separately are transport accidents within the meaning of the relevant statutory provisions.
[13]Or, so far as the AC Act is concerned, the relevantly identical provisions of the WIRC Act.
On the question of the proper construction of s 326 of the WIRC Act, the plaintiff submitted that s 326(a) only applied where the claimed injury arose from a single transport accident. Section 326(a) has no application in respect of an injury that arises from a series of transport accidents. In a case of that kind, s 326(c) applies and the injured worker’s claim is governed by the relevant provisions of the WIRC Act, rather than s 93 of the TA Act.
Finally, the plaintiff contended that the defendant’s construction of the relevant legislative provisions would lead to anomalous and unfair results — namely, that it would ‘prevent a worker driver, who through the course of his or her employment, is exposed to a series of incidents which fall within the definition of “transport accidents” from ever accessing a common law gateway for a course of employment claim’. The plaintiff submitted that the defendant’s construction would create a situation ‘whereby worker drivers who sustain psychiatric injury by reason of cumulative exposure to multiple incidents are at a disadvantage over workers who suffer psychiatric injury by reason of cumulative exposure to traumatic incidents that do not happen to fall within the definition of a transport accident’. It was submitted that the Parliament ‘could not have intended to create such inequity’.
Belgrave Heights
Before analysing the parties’ submissions, it is necessary to describe in a little detail the decision of Belgrave Heights upon which both parties rely.
As mentioned earlier, Belgrave Heights involved a case brought by a bus driver against her employer for damages for injuries she alleged she sustained in the course of her employment as a result of being required to drive an old bus that had a manual transmission and difficult brakes, which caused ‘severe jerking’. The plaintiff’s claim was that, while driving the bus, she was often thrust forward and then backwards in her seat; she did not have an appropriate seatbelt; the driver’s seat of the bus was poorly positioned in relation to the steering wheel; there was no headrest; and the bus was ‘generally non-ergonomic’. The plaintiff claimed that, on 13 August 2012, while driving a different bus, she felt a sudden acute and excruciating pain in her lower back, when she applied the brake and clutch simultaneously.
The plaintiff brought her claim pursuant to a certificate granted by the TAC pursuant to s 93(4)(c)(ii) of the TA Act. The certificate gave the TAC’s consent to the bringing of a proceeding ‘for the recovery of damages in relation to injuries sustained by the plaintiff as a result of a transport accident which occurred on 13 August 2012’. An issue arose before the primary judge in that case as to whether that certificate permitted the plaintiff to bring a proceeding in respect of her work duties over the course of her employment with the defendant, in circumstances where the plaintiff had not satisfied the serious injury requirements set out in s 134AB of the AC Act. The primary judge determined that issue in favour of the plaintiff worker. An appeal by the defendant employer was, however, upheld in this Court.
In upholding the employer’s appeal, this Court discussed the focuses and proper constructions of s 93 of the TA Act and s 134AB of the AC Act as follows:
The focuses of s 93 of the TA Act and s 134AB of the AC Act are different. Section 93 of the TA Act is concerned with the ability of an injured person to recover damages in a proceeding in respect of an injury that is a result of a transport accident. The first step in that process is to identify the transport accident, before identifying the injury said to have resulted. The focus in s 93 is on an injury that results from a transport accident — being a specified incident directly caused by the driving of a relevant vehicle.
On the other hand, s 134AB focuses on any injury arising out of or in the course of, or due to the nature of, employment — which might be the whole of employment, or some particular aspects of employment, or some specified incident or incidents, or some gradual process injury (to identify but a few examples).
...
What is plain from both the text and context of s 93 of the TA Act is that a proceeding brought in accordance with its provisions is one for the recovery of damages in respect of an injury that resulted from a transport accident. A plaintiff in such a proceeding cannot claim damages for any injury suffered before the transport accident occurred. So much has been the basis of every decision of this Court, concerning the operation and scope of s 93 of the TA Act, since Petkovski was decided.
The plaintiff submitted that she should be able to include the injuries she sustained prior to 13 August 2012 and which were caused by the driving of the bus between 2005 and 2012, because otherwise she would be required to take the inconvenient step of having to seek leave to commence proceedings in respect of each jolting incident that contributed to her injury. The fallacy in that argument is that, again, neither the text nor context of s 93 of the TA Act (or the TA Act more broadly) permits an injured person to combine the effects of multiple transport accidents and to sue in respect of an injury said to have resulted from the totality of those transport accidents. While an injured person may seek leave to commence proceedings in respect of more than one transport accident, the injury resulting from each accident must be separately identified, in accordance with the principles first stated in Petkovski, and then a determination must be made, in respect of each identified injury, whether that injury is serious within the meaning of the TA Act.[14]
[14]Belgrave Heights [2020] VSCA 240, [45]–[46], [49]–[50].
Relevant to the ultimate conclusion in Belgrave Heights, was this Court’s finding that it was not a case which involved multiple transport accidents (a transport accident being defined to mean ‘an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram’) — but rather, it was a case where the plaintiff bus driver had claimed to injure her back because each day she had to endure a series of strains whenever she drove the bus or applied its brakes.[15] This Court concluded that an examination of the whole of the TA Act, in context, showed that a transport accident ‘is an incident that occurs on a particular date and in circumstances that might fairly be described as an “incident” as that word is used in its common and ordinary meaning’.[16]
[15]Ibid [52].
[16]Ibid [54].
It was in those circumstances, where this Court had held that the plaintiff had not been involved in a or any transport accidents, that it concluded that the plaintiff had an entitlement to make a serious injury application under s 134AB of the AC Act to cover the gradual process injury sustained by her over the course of her employment as a bus driver.[17] It can be seen that the decision turned very much on the factual scenario and particularly whether any of the incidents which produced the back injury could be classified as a transport accident.
[17]Ibid [73]–[77].
Consideration
The plaintiff is a worker who is entitled to compensation in respect of injuries arising out of, or in the course of, or due to the nature of, his employment between 2005 and April 2015. His entitlement to claim common law damages in respect of those injuries is therefore governed by the provisions of Division 2 of Part 7 of the WIRC Act.[18] In summary, the patent effect of those provisions is that if a work-related injury is suffered ‘as a result of a transport accident’, the ‘gateway’ to accessing common law damages is to be found solely in s 93(4) of the TA Act. On the other hand, if the work-related injury is not the result of a transport accident then, pursuant to s 326 of the WIRC Act, the ‘gateway’ to accessing common law damages is to be found in s 335 of the WIRC Act.
[18]See s 5(1) of the WIRC Act.
There is no dispute that each of the fatalities and near miss incidents that occurred while the plaintiff was driving a train constitutes a transport accident within the meaning of the TA Act.
The problem, as we see it, for the plaintiff’s submissions is that the terms of s 93 of the TA Act are unyielding. It does not permit a person to aggregate injuries over multiple transport accidents, or to make a claim for a ‘gradual process injury’ caused by multiple transport accidents[19] — notwithstanding the undoubted ability of a worker to make a serious injury application in respect of a gradual process injury which did not result from any transport accident, pursuant to either s 134AB(16)(b) of the AC Act or s 335(2)(d) of the WIRC Act.[20]
[19]See Belgrave Heights [2020] VSCA 240, [50]–[51].
[20]Depending upon whether the gradual process injury was caused by work performed wholly before 1 July 2014, or by work performed (at least in part) on or after 1 July 2014.
In the absence of s 326 of the WIRC Act, it might be argued that an injured worker whose injury resulted from a transport accident would need to access each of the gateways specified in the TA and WIRC Acts. Such an argument has, however, been foreclosed by the enactment of s 326.[21] The purpose of the section is to avoid any uncertainty, and to make it clear that, in the case of a transport accident, an injured worker is only required to comply with the provisions of the TA Act in order to be entitled to recover damages.[22]
[21]Primary Health Care Ltd v Giakalis (2013) 38 VR 165, 174 [34]–[35] (Kaye AJA, with whom Weinberg JA and Vickery AJA agreed), dealing with the equivalent ss 134AA and 134AB of the AC Act.
[22]Ibid.
As just mentioned, it was not in issue that each of the incidents that occurred while the plaintiff was driving a train is a transport accident within the meaning of the TA Act. Thus, while the plaintiff would characterise his case differently (suing in respect of a process that exposed him to a number of transport accidents), the injury for which he seeks leave to claim damages is undoubtedly an injury that has arisen from a series of transport accidents; if not a series of injuries caused by a series of transport accidents.
Section 37(c) of the Interpretation of Legislation Act 1984 provides that, in an Act or subordinate instrument, unless the contrary intention appears, ‘words in the singular include the plural’. The reference to ‘a transport accident’ in s 326(a) of the WIRC Act therefore includes a reference to multiple transport accidents, unless the contrary intention appears. Construing s 326(a) in its context, and having regard to the legislative purpose of s 326 as a whole, we are unable to discern any contrary intention. Indeed, it appears plain that, consistently with predecessor provisions to s 326,[23] the legislature has determined that work-related injuries resulting from transport accidents are be dealt with in the same way that non-work-related injuries resulting from transport accidents are dealt with — namely, by reference to the provisions of the TA Act.
[23]See ss 134AA and 134AB of the AC Act. See also, s 135A(1) of the AC Act as enacted by s 5 of the Accident Compensation (Further Amendment) Act 1992.
Next, Belgrave Heights does not provide support for the proposition that an injured worker who suffers a psychiatric injury as a result of multiple transport accidents, that occurred in the course of that worker’s employment, is entitled to make a serious injury application under s 335(2)(d) of the WIRC Act. The basis upon which the plaintiff in Belgrave Heights was permitted (indeed required) to make an application under s 134AB(16)(b) of the AC Act was that none of the episodes of jolting and jerking which contributed to her back injury could be described as an ‘incident’ as that word is used in the definition of the expression ‘transport accident’ in the TA Act — and thus the back injury suffered by the plaintiff in that case was not an ‘injury … as a result of a transport accident’.[24] If the episodes of jerking and jolting alleged by the plaintiff in Belgrave Heights had constituted transport accidents within the meaning of the TA Act, then, like the plaintiff in the present case, the plaintiff in Belgrave Heights would have been required to make separate serious injury applications under s 93(4)(d) of the TA Act.
[24]See s 93 of the TA Act and Belgrave Heights [2020] VSCA 240, [52], [54].
Finally, there is nothing in the plaintiff’s submission that a construction of s 326 of the WIRC Act which requires the plaintiff to make separate applications under s 93(4)(d) of the TA Act leads to anomalous or unfair results such that this Court should prefer a construction which is contrary to the statutory text. As a plethora of cases (including Belgrave Heights and the authorities discussed therein) have shown, there are differences between the rights and entitlements of those who suffer injury as a result of a transport accident and those who suffer injury in other circumstances. The fact that the rights and entitlements of the plaintiff in the present case may be more restricted than in the case of another worker who suffers psychiatric injury as a result of multiple incidents, where that injury cannot be said to result from any transport accident, does not assist the plaintiff in the resolution of the present dispute. Plainly, by enacting in different terms the TA Act (dealing with transport accidents) on the one hand, and the AC Act (and later the WIRC Act) on the other hand (dealing with work-related injuries), the legislature intended that there would be differences in the treatment of cases dependent upon whether or not an injury could be said to be the result of a transport accident. What appears clear from the text of s 326 of the WIRC Act (and the earlier enacted ss 134AA and 134AB of the AC Act) is that the legislature determined that those people who were injured as a result of a transport accident should have the same access to common law, whether or not their injury was work-related.
In summary, once it was accepted that each fatality and near miss incident was a transport accident within the meaning of the TA Act, then the clear terms of s 326 of the WIRC Act meant that s 93 of the TA Act (for better or worse) governed the plaintiff’s ability to bring a common law claim in respect of those incidents. The serious injury provisions of the WIRC Act, again by the terms of the statute, were irrelevant.
For the reasons given above, the judge erred in concluding that it was open to the plaintiff to make a serious injury application under s 134AB(16)(b) of the AC Act. Each of the incidents that had given rise to the psychiatric injury sustained by the plaintiff throughout the course of his employment with the defendant was a transport accident within the meaning of the TA Act. In those circumstances, the plaintiff was required to make any serious injury application he wished to make in accordance with the provisions of the TA Act.
Conclusion
The application for leave to appeal must be granted, the appeal allowed and the judge’s order granting leave pursuant to s 134AB of the AC Act to the plaintiff to issue a proceeding for the recovery of damages in respect of the plaintiff’s psychiatric injury suffered during the course of his employment with the defendant must be set aside. In lieu of the judge’s order granting the plaintiff’s application under s 134AB(16)(b) of the AC Act, there will be an order dismissing that application.
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