Museums Victoria v Susnjara - [2021] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0089

MUSEUMS VICTORIA	Applicant
v
PAVO SUSNJARA	Respondent

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JUDGES:	BEACH, KAYE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2021
DATE OF JUDGMENT:	17 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 166
JUDGMENT APPEALED FROM:	[2020] VCC 1128 (Judge Bowman)

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ACCIDENT COMPENSATION – Workplace injury – Serious injury application – Worker having previously made application under s 134AB(4) of Accident Compensation Act 1985 for serious injury certificate in relation to wrist and hand injuries, makes second application in relation to shoulder injuries – Section 134AB(21) provides that if worker makes application under s 134AB(4) in respect of an injury then worker must not make further application under that section in respect of that injury – Whether worker’s second application prohibited by s 134AB(21) – Meaning of ‘injury’ in s 134AB – The ‘injury’ is the compensable injury in sense of total injury suffered in compensable circumstances – Accident Compensation Act 1985, s 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S E Gladman and Ms F C Spencer	Wisewould Mahony
For the Respondent	Ms F A L Ryan and Ms L Burke	Adviceline Injury Lawyers

BEACH JA
KAYE JA
OSBORN JA:

A worker who suffers injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014, and who wishes to recover damages at common law in relation to that injury must comply with the serious injury provisions in s 134AB of the Accident Compensation Act 1985 (‘the Act’).

Section 134AB(3) prohibits a worker from bringing proceedings in accordance with s 134AB unless the worker has made an application under sub-s (4) to the Victorian WorkCover Authority (‘the Authority’).[1] It is only if an application under sub-s (4) is rejected that the worker may bring an application under s 134AB(16)(b) of the Act to commence common law proceedings.
[1]Or a self-insurer.

Section 134AB(21) prohibits the making of second and subsequent applications under sub-s (4) in respect of ‘an injury’. In terms, sub-s (21) provides:

If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.

Between August 1992 and November 2012, Pavo Susnjara was employed by Museums Victoria as a painter. In October 2015, he made an application under s 134AB(4) (‘the first sub-s (4) application’) in respect of injuries he claimed were caused by his employment with Museums Victoria. In the first sub-s (4) application, Mr Susnjara relied upon an injury to his hands (and a consequential psychological injury), which he said was caused by the repetitive nature of his work. The body functions referred to in the first sub-s (4) application were those of his hands and upper limbs.

In February 2016, the Authority advised Mr Susnjara that it was not satisfied that he had suffered a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSCA 166
Decision Date: 17 June 2021

CaseChat Overview and Summary

Museums Victoria and Susnjara appeared before the Court of Appeal to resolve a dispute concerning the interpretation of the Accident Compensation Act 1985. Susnjara, an employee of Museums Victoria, initially sought a serious injury certificate for wrist and hand injuries sustained in a workplace accident. Subsequently, Susnjara made a second application for a serious injury certificate, this time in relation to shoulder injuries. The central issue before the court was whether Susnjara's second application was prohibited by section 134AB(21) of the Act, which stipulates that an employee cannot make a further application for a serious injury certificate in respect of the same injury.

The court was required to determine the scope of the term 'injury' as used in section 134AB. Specifically, the court needed to clarify whether 'injury' referred to the specific incident or the overall injury suffered by the employee. The court considered the broader context of the Act and the purpose behind limiting further applications. It found that the 'injury' referred to the total injury suffered in the compensable circumstances, rather than the individual incidents. Therefore, Susnjara's second application for a serious injury certificate related to the broader injury he sustained, which included both the wrist and hand injuries and the shoulder injuries.

Based on this interpretation, the court held that Susnjara's second application was not prohibited by section 134AB(21). The court's decision hinged on the understanding that the 'injury' in the context of the Act referred to the cumulative impact of the injuries sustained in the compensable event. This interpretation allowed Susnjara to seek a serious injury certificate for all related injuries under the single application process. The court's ruling ensured that employees could seek appropriate compensation for all aspects of their injuries without being unduly restricted by the legislative provisions.

Orders