Susnjara v Museums Victoria
[2020] VCC 1128
•31 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-02646
| PAVO SUSNJARA | Plaintiff |
| v | |
| MUSEUMS VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2020 | |
DATE OF RULING: | 31 July 2020 | |
CASE MAY BE CITED AS: | Susnjara v Museums Victoria | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1128 | |
REASONS FOR RULING
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Catchwords: Accident Compensation Act 1985 – s134AB(21) – effects of amendment – plaintiff made unsuccessful application pursuant to s134AB(16)(b) of the Act in relation to injury to the wrists sustained throughout the course of employment with the defendant – plaintiff now makes application pursuant to s134AB(16)(b) in relation to injury to shoulders suffered in same way (course of employment) – whether precluded from so doing by reason of earlier unsuccessful application in relation to wrists – Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 34 VR 232 and earlier decision of this Court in same application – arguments concerning intention and operation of the legislation – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan with Ms L Bourke | Adviceline Injury Lawyers |
| For the Defendant | Mr J Gorton QC with Mr S Gladman | Wisewould Mahony |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of a preliminary hearing in relation to which a Ruling is sought. It concerns the Accident Compensation Act 1985, hereinafter referred to as “the Act”. Whilst, in submissions, there was reference to various sections of the Act, the provision which received the most attention was s134AB(21). The factual background shall be set out in greater detail, but essentially the argument centres upon whether an injured worker who has failed in a serious injury application in respect of injury to the wrists sustained throughout the course of employment is able subsequently to bring an application in respect of injury to the shoulders also allegedly suffered throughout the course of employment.
2 Ms F Ryan of counsel with Ms L Bourke of counsel appeared on behalf to the plaintiff. Mr J Gorton QC with Mr S Gladman of counsel appeared on behalf of the defendant. No oral evidence was called and, for the purposes of this application, the factual background is not in dispute. Counsel for each party advanced particularly helpful written and oral submissions, and I thank them for that.
(b) The factual background
3 For the purposes of the present application, there was no dispute as to the factual background, which could be summarised as follows.
4 The plaintiff is now a 69‑year-old man who came to Australia from Croatia when 19 years of age. He commenced working for the defendant as a painter in August 1992. He worked for the defendant for approximately 20 years. He is a right-handed man. Essentially he asserts that the painting which he had to perform was repetitive and involved very large areas. He developed symptoms such as pins and needles in both hands in April 2011. His condition was diagnosed as bilateral carpal tunnel syndrome. He worked on restricted duties, mixed with some normal duties, for a period, before being made redundant in November 2012. He has not worked thereafter.
5 On 23 October 2015 he issued an application for a serious injury certificate pursuant to s134AB(4) of the Act. He relied upon injury to his hands and consequential psychological injury. The body functions referred to were those of both hands and upper limbs, and reliance was placed upon the entire period of employment, including the assertion that excessive strain and pressure was placed upon both hands and upper limbs.
6 The Victorian WorkCover Authority, hereinafter referred to as upper limbs and “the VWA”, did not grant a certificate and, as a result, the plaintiff applied pursuant to s134AB(16)(b) of the Act for leave to bring proceedings for the recovery of damages. This application was contested and was heard by her Honour Judge K L Bourke on 9 March 2017. Transcript of that hearing was placed before me. Ultimately the plaintiff was unsuccessful, with her Honour handing down her decision on 29 March 2017. I shall return to further discussion of the conduct of the case and the decision of her Honour.
7 On 26 October 2018 the plaintiff completed a Form A pursuant to s134AB(4) of the Act. The employer is again named as Museums Victoria. The injuries relied upon are to the right and left shoulders, and the plaintiff is said to rely upon permanent serious impairment or loss of a body function.
8 In his affidavit of 3 April 2019 in support of his application, the plaintiff refers to his bilateral carpal tunnel syndrome, but asserts that, since surgery to his left wrist in 2018, his carpal tunnel syndrome has improved substantially. It is clear from the affidavit that, in bringing his second application, the plaintiff is relying upon injuries “... to my right shoulder and/or left shoulder and/or bilateral shoulders”. It is also apparent from the affidavit that no specific incident is asserted and that the plaintiff is relying upon the course of his employment. This is also reflected in the Draft Statement of Claim which has been put before me.
9 The plaintiff’s application was rejected, this leading to the issuing of the Originating Motion, which in turn led to the present application before me. A document headed “Particulars of Injury” and dated 2 March 2020, which has also been put before me, spells out in greater detail the injury or injuries relied upon. It is asserted that, in the course of his employment with the defendant, the plaintiff suffered injuries such as the premature development of degenerative disease of both right and left rotator cuffs, bilateral supraspinatus complete full-thickness tears and the like.
10 It is against this background that the present dispute has arisen.
(c) The legislative provisions
11 Whilst, as stated, there was reference to various sections of the Act, there was particular focus upon s134AB(21). In addition, attention was focussed upon the legislative history of this provision and in particular to an amendment pursuant to Act No 9 of 2010, which was deemed to have come into operation on 17 June 2009. As there was some focus upon what was intended and what was effected by that amendment, I shall set out both the pre-amendment provision and the provision as it now reads. I have placed emphasis upon words that seem to me to be of particular interest or significance.
12 Prior to the amendment, the provision read as follows:
“If a worker makes an application for leave to bring proceedings in accordance with subsection (16)(b) and 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.”
13 After the amendment, the provision reads:
“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.”
(d) The submissions on behalf of the parties
14 It is against the above background that the defendant seeks a ruling to the effect that the application issued by the plaintiff is invalid. As it is the defendant’s application, Mr Gorton, on its behalf, quite properly stated that it should go first ― see Transcript, hereinafter referred to as “T”, 1.
(i) The submissions on behalf of the defendant
15 The written and oral submissions of Mr Gorton and Mr Gladman could be summarised as follows.
16 Throughout s134AB, the singular “injury” is used. Thus, there is a potential difficulty if one event or circumstance gives rise to a number of compensable conditions. Each condition can be treated as a separate injury or the word “injury” can be seen to encompass all of the compensable conditions. If each condition is treated separately and as a separate injury, a lot of difficulties then arise. A plaintiff would need to get leave separately for each condition concerning which such plaintiff wanted to sue. There would then be different thresholds for each injury. There would be endless disputes concerning which condition no-fault benefits had been paid or as to how future damages were to be assessed. The current version of s134AB(21) prevents a worker from making a second application to the VWA under s134AB(4), whereas the original version prevented the worker from making a second application under s134AB(16)(b). The Hanks’ Report of 2008 recommended the amendment of s134AB(21) so that, where there has been a determination in respect of serious injury, a worker could not make a further application based on the same cause of action.
17 It is submitted that the word “injury” in s134AB(21) refers to the total injury suffered by the worker in the relevant compensable circumstances. Reference is made to the decision of the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232. In that case, the Court of Appeal gave the word “injury” a compendious definition or meaning, so that it referred to the total injury suffered in the relevant compensable circumstances. The following is stated at paragraph [3]:
“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.”
18 At paragraph [79], the following is stated:
“... our preferred view ... [is] 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.”
19 Thus, if the injury is alleged to be the result of a strain over time, it will be every injury that is so suffered by reason of that strain over time.
20 Further, the following is said at paragraph [5]:
“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.”
21 At paragraph [26], reference was made to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, where, at paragraph [70], it was stated that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.
22 What the plaintiff is saying in the present application is that s134AB(21) is to be treated differently from the remainder of s134AB. However, what the Court of Appeal was attempting to do in Georgopoulos was to find something that was harmonious in terms of the complete s134AB. It was endeavouring to interpret the provision so that it resulted in the harmonious operation of a series of further provisions within the section. Reference is made to paragraph [82] of the judgment. In addition, reference is made to provisions such as s134AB(22) and (36).
23 A clear difficulty arises in relation to the liability to make ongoing payments of compensation. In Georgopoulos, the Court of Appeal discusses this at paragraph [104]. The expression “the injury” in relation to the granting of a certificate pursuant to s134AB(16) must refer to the total injury suffered by the worker in the relevant compensable circumstances. On a proper construction of s134AB, the application made to the VWA under sub-s(4) and the limitation in sub-s(21) are both in respect of the same total injury. If leave to sue is obtained, the injured worker can then sue for the total injury suffered in the relevant compensable circumstances and not just a particular component found to produce a serious permanent impairment of a body function. Similarly, it is argued, once the worker has made an application to the VWA under s134AB(4), the worker will then be precluded by s134AB(21) from making any further application in respect of any component of the total injury.
24 This approach also harmonises with the scheme for compensation for non-economic loss pursuant to s98C of the Act. Further, if this approach was not applicable in sub-s(21), this would be a complete aberration and the harmony referred to by the Court of Appeal would be lost.
25 If the approach argued for by the plaintiff in this case were to be adopted, it would mean, for example, that a person could bring an application in respect of a right shoulder injury arising out of a particular work process and, if that failed, then bring an application for the left shoulder for injury arising in the same way. A logical extension would be that a worker who has suffered a back injury could bring separate applications for each level at which there has been the aggravation of underlying degenerative changes. The approach adopted by the plaintiff in the present case would lead to a lack of finality and, potentially, to endless litigation before different judges. Bearing in mind the decision of the Court of Appeal in Georgopoulos, the injury referred to in s134AB(16) must refer to the total injury suffered by the worker in the relevant compensable circumstances. This then applies to the application to the VWA made pursuant to sub-s(4) and the limitation in sub-s(21).
26 The approach argued for by the defendant also fits in with the operation of s98C of the Act. The scheme for compensation for non-economic loss pursuant to that section is intertwined with the serious injury process. The compensation for such non-economic loss pursuant to s98C is assessed by reference to the AMA Guides. In making a claim for compensation under s98C, the worker must include all injuries arising out of the same event or circumstances in the one claim. That claim is pursued before there is any application pursuant to s134AB(4). If the whole person impairment arrived at is one of at least 30 per cent, the injury is deemed to be a serious injury. This alternative method of establishing serious injury only permits the one consideration of every injury component arising out of the compensable circumstances.
27 In Georgopoulos at paragraph [65], the Court of Appeal referred to the example of a crush injury of both hands, going on to say that 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, and the same can be said of bones, tendons, nerves and the like. It is to be remembered that the application for serious injury does not occur until 18 months after the suffering of the injury or the completion of the process pursuant to s98C. The processes are related. The permanent impairment process is designed to have an injured worker identify every compensable component relied upon in that impairment assessment, with a view to obtaining a 30 per cent or better result.
28 Once a worker is through the gateway, that worker can sue for every aspect of the compensable injury, even those that are not assessed as being serious. The grant of leave is in respect of the total compensable injury in the compendious way. The application is for the total compendious injury and not part of it. Leave is given by the VWA or by the Court on that basis.
29 When Georgopoulos was being argued before and then determined by the Court of Appeal, the original ruling at first instance was not being challenged. Leave had been given to bring an application based upon paragraph (c) of the definition. That was not appealed. The challenge before the Court of Appeal concerned whether the plaintiff, having obtained leave in relation to paragraph (c) of the definition, was then confined to pursuing his litigation based solely upon loss of mental powers or whether his litigation could embrace all injuries sustained in the relevant accident or work process. The Court of Appeal found that the plaintiff was not restricted to paragraph (c), being the injury by reason of which he accessed the gateway. Essentially it said that, once an injured worker is through the gateway, such worker is through the gateway in respect of all injuries suffered.
30 Applying that finding and logic to the present situation, if her Honour Judge Bourke had granted the plaintiff leave to bring proceedings for the recovery of damages in respect of injury to his wrists, he would have been entitled to recover damages in respect of the alleged injury to his shoulders. It follows that both alleged injuries arose in the same compensable circumstances and are merely different components of the same total injury.
31 It is also to be borne in mind that it was specifically noted by the Court of Appeal that there was no challenge to the correctness of the Orders made at first instance. The initial ruling on the scope of the leave given, and which became a subject of the appeal, was given by Kaye J. His Honour struck out the particulars of organic injury contained in the proceedings issued following the granting of leave. It was from that decision that the worker, Georgopoulos, appealed. The Court of Appeal upheld the appeal, effectively saying that it was not the situation that the worker could only obtain damages for the component of the injury (the mental injury) in respect of which he had obtained leave. The argument advanced by the plaintiff in the present case ignores the logic and the reasoning process employed by the Court of Appeal in Georgopoulos. The plaintiff is effectively arguing that s134AB(21) is a stand-alone separate provision, with a different concept contained within it to that which is set out in the rest of the section.
32 In their written submissions, counsel for the plaintiff have referred to three decisions of the County Court. Two of these are related, both involving the same worker and employer. These are the cases of Ellis v GAM Steel, the earlier judgment having been delivered on 3 February 2017 and the later on 10 November 2017. In neither decision was the argument presently before the Court advanced. The ruling given in the earlier unsuccessful application for summary judgment specifically left to one side that part of the application which dealt with psychological injury. That was in turn dealt with in the later application. There was no dispute but that such later application was validly before the Court.
33 The plaintiff has also referred to the County Court decision of Ly v RMS Distribution Services Pty Ltd [2013] VCC 1821. Again, it was explicitly stated that no point was being taken which was akin to the argument now being put. The defendant specifically indicated to his Honour Judge Jordan that there was no point being taken about the cause of action being the same, nor concerning any prohibition pursuant to s134AB(21).
34 Another argument advanced on behalf of the plaintiff is that the decision of the Court of Appeal in Georgopoulos was only concerned with the situation that arises once an injured worker has obtained leave. Superficially, that is correct, but the supporting logic and reasoning deals with additional issues. These include the interrelationship that exists between s134AB(1) and (2).
35 It is also correct that there may be occasions when an injured worker brings an application and loses, and then subsequently has a deterioration in the same body part or another body part in respect of which, if another application could be brought, such later application might be successful. That is unavoidable, but it is not a reason to read a statute in a different way.
36 Some finality is required. The example just referred to is no more or less fair than a situation where an injured worker obtains leave or gets a damages award and then recovers. This is all part of a “once and for all” approach. There has to be a time at which entitlements are measured, and that time is principally in the control of the injured worker.
37 An argument based upon the proposition that the parties are dealing with beneficial legislation should also be rejected. It is at least as much a part of the scheme to restrict people from common law as it is to allow people to access it. Section 134AB is a provision that tries to balance workers’ rights and the scheme’s financial obligations, existing and potential. The Act should be construed by reference to its terms, rather than trying to impute some wish to be generous to one side or the other. In that regard, reference is made to Carr v Western Australia (2007) 232 CLR 138. Legislation dealing with conflicting interests should be interpreted without a bias one way or the other.
38 In conclusion, there is no basis for suggesting or pretending that the operation of s134AB(21) exists outside the scheme of s134AB generally and that the word “injury” can be given an entirely different meaning in s134AB(21) than the meaning given elsewhere. The contrary is the case.
39 In answer to a question of mine which was at least in part based upon a referral to the transcript involving the decision of her Honour Judge Bourke, Mr Gorton stated that the defendant accepted that the manner in which the case was run before her Honour was that the only injury relied upon was the carpal tunnel injury to the wrists. It may be that the body function referred to involved the use of the arms or hands, but the defendant accepts that the plaintiff did not run the case on the basis that there was a condition of injury to the shoulders. In the Form A, the body function alleged to be impaired permanently is the right hand/upper limb and/or left hand/upper limb. However, the specific injury relied upon is described as bilateral carpal tunnel syndrome requiring decompression and the production, aggravation and the like of osteoarthritic changes in both hands. Thus, the distinction was drawn between the medical condition and the impaired body function. These matters are discussed at T13–15. Mr Gorton said in conclusion that the only compensable medical condition that the plaintiff relied on was the carpal tunnel syndrome. However, the case was that this interferes with the use of the upper limbs. There is a distinction between use of the upper limbs and injury to the upper portions of the limbs. Everything else – the period of employment, duties and the like – is the same.
(ii) The submissions on behalf of the plaintiff
40 The submissions of Ms Ryan and Ms Bourke on behalf of the plaintiff could be summarised as follows.
41 The submission of the defendant is that the Court of Appeal’s construction in Georgopoulos in relation to the expressions “an injury” and “the injury” applies throughout the whole of s134AB, regardless of the context or the purpose of the relevant sub-sections. The plaintiff rejects this. The Court of Appeal in Georgopoulos was concerned with the operation of the Act and the various sub-sections after a worker has passed through the serious injury gateway.
42 Secondly, the construction argued for by the defendant gives rise to a far broader prohibition in s134AB(21) than what was intended by the legislature when it amended that provision pursuant to Act No 9 of 2010.
43 Before returning to the amendment, the following factual background is to be recalled. The Form A relating to the previous application was for bilateral carpal tunnel syndrome requiring surgery, and the aggravation and the like of osteoarthritic changes in both hands, along with consequential psychological injury. No claim was made in respect of the shoulders. At the hearing of the serious injury application before her Honour Judge Bourke, it was made clear that the injury relied upon was bilateral carpal tunnel syndrome and her Honour’s finding was that she was not satisfied that any impairment resulting from the bilateral carpal tunnel syndrome was serious.
44 In relation to the legislation, prior to the 2010 amendment the provision stated that, if a worker failed to satisfy a Court that an injury was a serious injury, the worker was not entitled to make a further application for leave to bring proceedings in respect of the same claimed cause of action. This was amended to read that, if a worker makes an application in respect of an injury, the worker must not make a further application under sub-s(4) in respect of that injury. If the interpretation for which the defendant argues is adopted, the amendment is effectively rendered meaningless or given no work to do.
45 After the amendment, the preclusion of a further application does not rely upon a sub-s(16)(b) application having been commenced. Secondly, the amendment changed the requirement for operation of the preclusion from the concept of “cause of action” to the concept of “an injury” and “that injury”. The plain reading of the provision, as amended, no longer precludes a further application for injuries not the subject of the previous application arising from the same cause of action.
46 It is well-understood in statutory construction that all words must be given meaning and effect, and that principle is particularly compelling if the phrase in question has been added or altered by amendment.
47 The Act is about workers’ rights. It was noted by the Court of Appeal in Georgopoulos that such rights were restored by way of the Accident Compensation (Common Law and Benefits) Bill 2000. The rights were restored, providing that one of the gateway requirements was satisfied. Such rights should not be narrowed, unless it is clear that Parliament intended to do so. It is clear that, by amending s134AB(21) as it did, the legislature narrowed the basis by which the preclusion was enlivened by replacing the phrase “cause of action” with “that injury”. Such an amendment cannot be meaningless.
48 In some cases, the interpretation sought by the defendant would preclude a worker from making a further application when a compensable injury which had not formed part of the serious injury application worsened to the point that it became serious. That is in fact what occurred in the present case.
49 The explanatory memorandum to the relevant bill confirmed the plain meaning of the provision. It was stated that it provides:
“… that a worker who has made an application for leave to bring proceedings under section 134AB in relation to an injury is prohibited from making a further application for leave to bring proceedings under section 134AB in relation to the same injury.”
50 The phrases “the injury” and “an injury” can have different meanings within the same Act and within s134AB. It depends upon the context and purpose of the specific provision. The provisions under consideration here (s134AB(4) and (21)) are directed at the making of an administrative application. The Court of Appeal in Georgopoulos was concerned with the sub-sections relating to a situation where a plaintiff has been granted leave, whether by way of a deemed serious injury or whether by way of achieving a gateway through the 30 per cent lump sum impairment.
51 A plaintiff does not come to court via s134AB(4) and (16)(b) claiming serious injury for the totality of compensable injuries. A plaintiff is required to identify a compensable injury upon which such plaintiff relies and in respect of which such plaintiff contends that serious injury consequences have been suffered. In Georgopoulos, the Court of Appeal determined that, once through the gateway, a plaintiff is entitled to seek to recover damages for the compendious nature of the compensable injury. However, Georgopoulos does not apply in reverse, so as to bar a worker from making an application for serious injury pursuant to s134AB(4) for an injury which has never been the subject of a previous application. Neither does it bar any determination by the VWA pursuant to s134AB(1)-(4)(a) and (b).
52 Little is to be gained from consideration of the Hanks’ Report. What might have been recommended and what Parliament ultimately did are two different matters. The language employed in the text of the legislation is the surest guide to legislative intentions.
53 Reference is made to the original decision in Georgopoulos v Silaforts Painting Pty Ltd & Worksafe Victoria [2010] VCC 51. In that case, it was decided that the relevant comparison involved which injuries formed the subject of the relevant applications. In the context of a further application with the same employer for a psychiatric injury arising from the consequences of a physical injury (concerning which an earlier application had failed), it was determined, as stated, that the relevant comparison involved which injuries formed the subject of the relevant applications. As the particular injury that formed the subject of the further application had not been the subject of the earlier one pursuant to s134AB(4), the application did not fall foul of s134AB(21). Reference is also made to Ellis v GAM Steel Pty Ltd (unreported, 10 November 2017) and to LY v RNS Distribution [2013] VCC 1821. In the latter case, his Honour Judge Jordan raised the issue as to whether the provisions of the Act prevented the plaintiff’s second serious injury application based on injury suffered in the same way as an earlier application. After consideration, the defendant advised that no point was being taken in respect of s134AB(21).
54 Further, the construction for which the defendant argues creates disharmony with the scheme for compensation for non-economic loss pursuant to s98C of the Act. That is in addition to defeating the intention and purpose of the amendment contained in Act No 9 of 2010.
55 In the present case, the fact that the shoulders and wrists are both components of the upper limbs is of no moment. In Barwon Spinners v Podolak (2005) 14 VR 622, it was stated that the word “injury” does not refer to the impairment of a body function, but sub-section (1) speaks first and foremost of the plaintiff having, in substance, a compensable injury. Reference is also made to the decision of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260 at paragraphs [41] and [45]. It was there emphasised that, in a serious injury application, the attention of the Court is upon the specific injury, and it is that which is the subject of the grant of leave of certification. The only relevant enquiry of the VWA relevant to the circumstances which give rise to the injury is whether the injury can be said to be compensable and whether it is related to employment on or after 20 October 1999. It is clear from the passages of that judgment contained in paragraph [41] and onwards that the starting point when an application is made under s134AB(4) is the identification of “the injury” claimed. The nomination of “body function” is irrelevant to this identification and it is only at the next step of the process – ascertaining whether the injury is “serious” – that the definition of serious injury in sub-s(37) and the concept of body function gain relevance.
56 Section 134AB(21) is concerned purely with the procedural aspect of making a claim for serious injury, as opposed to referencing “the injury” or “an injury” for which a worker has in fact been granted leave (as was the concern of the Court of Appeal in Georgopoulos). In that case, the Court of Appeal observed that the sense in which the term “injury” is used will depend upon its context. Section 134AB(21) is solely concerned with prohibiting the making of an administrative application.
57 The decision in Georgopoulos is concerned with the operation of the Act after a worker passes through the serious injury gateway. The Court concluded that, once through the gateway, a worker may recover damages for all components of an injury which is compensable pursuant to s82(1) of the Act. It is concerned with the import of the expressions “the injury” or “an injury” contained in s134AB, which relate to damages recoverable after a worker has passed through the gateway. The Court of Appeal stated that the fundamental question raised by the appeal was whether a worker is confined, in a claim for damages at common law in respect of workplace injury, to a specific injury or injuries certified to be a serious injury, or whether the serious injury provisions simply are a gateway to a claim for damages for the total injury suffered in compensable circumstances. The conclusion of the Court was that, once through the gateway, a worker may recover damages for all components of a compensable injury. The focus of the Court was upon the import of the expressions “the injury” or “an injury” contained in the sub-sections of s134AB, which concern damages recoverable after a worker has passed through the gateway. It does not work in reverse, so as to bar a worker from attempting to access a serious injury gateway by precluding him or her from making an application pursuant to s134AB(4) for an injury which has not been the subject of any previous application or determination by the VWA pursuant to s134AB(7).
58 In Georgopoulos, the Court of Appeal made no criticism of the earlier construction by the County Court of s134AB(21), although it made express reference to the preliminary ruling and noted that no challenge was made in the appeal before it in relation to the correctness of that preliminary ruling. The decision of the Court of Appeal in Georgopoulos meant that the worker was permitted to recover damages for an injury sustained in the course of his employment on a specific date, despite having made a previous and unsuccessful serious injury application for injury sustained with the same employer on the same date. If the construction urged by the defendant is correct, the right of Georgopoulos to sue for common law damages should never have been enlivened, because of the failure of his first serious injury application. This would be a perverse result and supports the contention that the decision of the Court of Appeal cannot be used in the manner contended for by the defendant.
59 Further, the interpretation of the provision urged by the defendant would create disharmony with the scheme pursuant to s98C of the Act. Section 104B was intended to operate differently from s134AB(4). It is specifically provided in s104B(5A) and following sub-sections that a worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s98C and can make only one claim for compensation under s98C in respect of injuries arising out of the same event or circumstance. Section 104B(5AB) and (5B) underline this. If Parliament intended s134AB(21) to have the same effect, the same language could have been used or the expression “in respect of the same claimed cause of action” retained. A worker can make a serious injury application without first making an impairment benefits claim.
60 The construction of s134AB(21) advanced by the defendant would result in manifestly unfair outcomes. A worker whose compensable injury worsened to the point of likely satisfying the narrative serious injury test would be precluded from attempting to access the serious injury gateway when he or she had never made a serious injury application and concerning which the VWA had never made a determination.
61 In addition, the fact that the Court of Appeal in Georgopoulos determined that a worker who accesses a serious injury gateway may recover damages in respect of all components of compensable injury does not preclude a worker from a further attempt to access that gateway by means of an injury which has never been the subject of an application or determination by the VWA pursuant to s134AB(7). The vice addressed by s134AB(21) is that of a worker making multiple attempts to access the serious injury gateway for an injury or injuries in respect ofor which a previous attempt has been made. That does not stop a worker making a further attempt to access the gateway by relying on a particular injury which has never been the subject of an application pursuant to s134AB(4).
62 The Act is beneficial legislation – see Zickar v NGH Plastic Industries Pty Ltd (1996) 187 CLR 310. The legislation is protective of basic rights, and should not be construed so as to narrow those rights unless a clear purpose to do so is evinced by Parliament – see Zickar at paragraph [3]. No such clear purpose is present in s134AB(21) and in fact the reverse is true following the amendment, which removed “the cause of action” as the basis upon which the preclusion was enlivened. The defendant’s construction would in essence defeat the amendment by rendering the change from “cause of action” to “that injury” (meaning the same injury) meaningless. The words “an injury” and “that injury” in s134B(21) mean that the reference now is to any injury which formed part of the previous application pursuant to s134AB(4) and does not include compensable injury which formed no part of the previous application.
63 Further, the construction for which the plaintiff contends causes no prejudice to the defendant. Any issue concerning lapse of time can be addressed by way of a limitations defence at common law. On the other hand, the construction for which the defendant argues gives no effect to the 2009 amendment.
64 The prohibition of s134AB(21) is not engaged. The plaintiff is entitled to bring the present application pursuant to s134AB(16)(b).
(iii)The reply on behalf of the defendant and the further response on behalf of the plaintiff
65 The reply of Mr Gorton and Mr Gladman on behalf of the defendant could be summarised as follows.
66 When this matter was determined by her Honour Judge Bourke, it was stated that “The relevant body function is the upper limbs with the plaintiff’s condition diagnosed as bilateral carpal tunnel syndrome”. Accordingly, her Honour understood the claim as being based on a medical condition of carpal tunnel with the impaired body function being the upper limbs.
67 In relation to the concept of beneficial legislation, s134AB(21) is not beneficial legislation for workers, because it is directed at placing restrictions upon them. Further, a situation where workers can bring Originating Motions, withdrawing them again and again without running into obstacles, is as good as any other explanation for the amendment moving the prohibition from a dismissed Originating Motion to a second Form A application. An example of this had been seen in Cockerill-Wright v State of Victoria [2007] VCC 1015 and [2008] VCC 498. Thus, there is no basis to conclude that the amendment is meant to advantage workers and the contrary is correct.
68 Ms Ryan responded to this reply by Mr Gorton briefly as follows. In terms of compensable injury for the purposes of s134AB, what was before her Honour Judge Bourke was bilateral carpal tunnel syndrome. The impairment was framed as impairment to the upper limbs, but the concept of injury is entirely separate from the concept of impairment of a body function – see Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33. Further, her Honour noted that the plaintiff was having some problems with his shoulders, this being a possible issue in relation to disentanglement. It is very clear that injury to the shoulders was in no way before her Honour as part of a serious injury application.
69 In relation to the decision in Cockerill-Wright, that decision concerned s134AB(21) as it was prior to the amendment. By reason of the amendment, Parliament removed the phrase “same cause of action” and replaced it with “an injury” and “in respect of that injury”.
Ruling
70 This matter involves a somewhat intriguing and very well-argued preliminary point, which centres largely upon statutory interpretation. The intended operation of the amendment to s134AB(21) of the Act lies at the centre of it.
71 I say at the outset that I favour the interpretation for which Ms Ryan and Ms Bourke argue. I hasten to add that this is not simply because it largely accords with my previous interpretation of the amended provision in Georgopoulos. I appreciate that such interpretation was not the subject of argument before the Court of Appeal and therefore was neither endorsed nor overturned. I also appreciate that, of course, observations made by their Honours in that appeal may have the potential to impact upon the correctness or otherwise of my Ruling at first instance.
72 I have arrived at the conclusion referred to above for the following reasons, which are not set out in order of importance or significance.
(a) The amendment to s134AB(21) contained in Act No 9 of 2010 must have some purpose and some operational impact. The sub-section, as it read prior to amendment, referred to the failure of an application pursuant to sub-s(16)(b) “to satisfy a court that the injury is a serious injury”. That was a type of condition precedent for the operation of the main clause. The main clause was that, if such condition precedent operated, the worker in question was not entitled to make a further application for leave (pursuant to sub-s(16)(b)) to bring proceedings in respect of the same claimed cause of action (my underlining). In other words, if a worker sought leave to bring proceedings in relation to a cause of action and failed to satisfy a court that the relevant injury was a serious injury, the worker could not make a further application for leave based upon the same cause of action. That cause of action was closed to the worker. That was a somewhat broad prohibition.
In the Act, there is no definition of “same claimed cause of action” or, indeed, “cause of action”. It is a term that has been defined over the years. For example, in Sugden v Sugden [1957] 1 AER 300, Denning LJ defined “causes of action” as “rights which can be enforced, or liabilities which can be redressed, by legal proceedings in the Queen’s courts”. Another definition, to much the same effect, is “the act on the part of the defendant which gives the plaintiff his cause of complaint” – see, for example, Bass v R [1948] NZLR 777. Older, but useful, definitions can be found in Read v Brown (1888) 22 QBD 128 – “The facts which are relied upon for judicial redress” – and in Bennett v White [1910] 2 KB 643 – “The whole set of facts which give rise to an enforceable claim”. Without going through them in detail, other definitions to be found in legal dictionaries and the like include “the set of facts which give rise to a claim enforceable in court” and “a legally recognised wrong which creates the right to sue”. These are just a couple of definitions extracted from online legal dictionaries. However it be defined, a “cause of action” is patently a broader term than “an injury” or “that injury”. Thus, the amendment under discussion narrowed the scope of the prohibition applying to further applications. Viewed in this way, the prohibition changed from being in relation to the facts or matters giving rise to the relevant legal proceedings to a prohibition in respect of a particular injury – “that injury”.
I would add that the amended provision contains no reference to sub-s(16)(b). It makes no reference to leave to bring proceedings as granted by the Court.
Further, the main clause of the previous provision contained a prohibition upon a further application for leave to bring proceedings in respect of the same claimed cause of action. After the amendment, the prohibition is upon a further application pursuant to sub-s(4) in respect of “that injury” – that is, “an injury” as being the basis of an application under sub-s(4).
The distinction between the two seems to me to be as follows. As discussed above, the pre-amendment provision operated in the context of a court-based cause of action. If a worker went to Court (pursuant to s(16)(b)) seeking leave to bring proceedings based on a cause of action and failed the serious injury test, such worker could not make a subsequent application in respect of “the same claimed cause of action” (again, my underlining). By way of contrast, the amended provision is not based upon Court proceedings. There is no reference to sub-s(16)(b). There is no reference to failure to satisfy a Court. There is no reference to a further application for leave to bring proceedings. There is no reference to “the same claimed cause of action”.
In summary, the pre-amendment version of the sub-section was directed at prohibiting a previously unsuccessful litigant – a litigant who has actually been unsuccessful before a Court – from attempting to bring legal proceedings based upon the same cause of action. The amended version of sub-s(21) is based upon sub-s(4). That in turn should be seen in the context of preceding provisions. Damages may be recovered in respect of “an injury” – see, for example, sub-ss(1) and (2). If the injured worker has made an application under sub-s(4) in respect of an injury, the amended sub-s(21) precludes the worker from making a further application “in respect of that injury”. The previous references to sub-s(16)(b), leave to bring proceedings and “the same claimed cause of action”, have been removed. The pre-amendment provision was directed at proceedings and causes of action and the avoidance of repetition of the latter. The post-amendment version is directed at the prohibition of repeated applications in respect of “an injury”.
In the present case, the injury that was specifically relied upon in the Form A, being the approved form of application to be used in making an application under s134AB(4), was described as being bilateral carpal tunnel syndrome; the production, aggravation and the like of osteoarthritic changes in both hands; and consequential psychological injury. That is the injury which was before the Court in the previous proceedings and the injury upon which her Honour based her decision.
For the purposes of s134AB(21), the injury to the wrists and hands was the injury in respect of which application under sub-s(4) had been made and “that injury” in respect of which the plaintiff “must not make a further application”.
In summary, the injury relied upon in the earlier unsuccessful application under s134AB(4) was to the wrists and hands. No further application can be made in respect of that injury. The present application is one in respect of the shoulders. No statutory prohibition exists in relation to the bringing of that application.
(b) That the above represents the correct interpretation of s134AB(21) seems to me to be further supported by the following. Let us assume that a worker makes an application in respect of injury to the ankles arising out of or in the course of employment. The worker issues an application pursuant to sub-s(4) and, ultimately, seeks leave of the Court pursuant to sub-s(16)(b) to bring an action in respect of the injured ankles. The application for a serious injury certificate is unsuccessful. Unbeknown to the worker, there is rapidly advancing osteoarthritis in both knees. Ultimately, the worker comes to bilateral knee replacement surgery. The medical advice is that the course of employment was a significant contributing factor to the advance of the osteoarthritis and resulted in the need for bilateral surgery.
Let us also assume that it is agreed by all medical examiners that the injury to the knees arose out of or in the course of employment, without any specific incident. Let us also assume that the assessment of all relevant medical examiners is that the worker has a degree of impairment of 30 per cent or more as a result of the knee injuries. As such worker has failed in the application in relation to the ankles, and despite the fact that such worker was unaware of the knee injuries or their relationship to employment at the time of the application in respect of the ankles, and despite the universal support implicating employment and the assessment of 30 per cent or more impairment in relation to the knees, is the plaintiff precluded from bringing an application in relation to them? Could it mean that, despite the earlier unsuccessful claim in relation to the ankles, the injury to the knees is deemed to be a serious injury pursuant to s134AB(15), but is not available if the worker is applying pursuant to s134AB(16)?
It seems to me that, in each instance, such a result would be unsatisfactory, if not unfair, and that to achieve such outcomes could only result from a strained, if not tortuous, interpretation of the language of the relevant provisions.
Such results are avoided if the more obvious use of the language of s134AB(21) is adopted. A matter of great significance is that the amended wording of sub-s(21) refers to “injury” and “that injury”, whereas its predecessor spoke in terms of “the same claimed cause of action”. To refer back to the example set out above, if the ankles of the unsuccessful worker subsequently deteriorated after the failure of his application, he would not be entitled to make a further application in respect of that same injury. It might be unfortunate, but it is understandable that there must be some finality in respect of a particular injury. That is a different proposition from saying that the operation of the relevant provision means that an unsuccessful worker cannot subsequently seek to make application in respect of a different injury which arose from the same circumstances and of which he or she might not even have been aware.
Much of this comes back to the amendment of the sub-section. The focus changed from being upon Courts and proceedings in respect of the same claimed cause of action, to being upon applications in respect of an injury. In essence, a worker now cannot make a further application “in respect of that injury”. The wording “the same claimed cause of action” has been removed.
(c) I do not agree that what appears to me to be the logic of the above is adversely affected by the decision of the Court of Appeal in Georgopoulos. That decision deals with what occurs after the injured worker has succeeded in passing through the legislative gateway. The focus then is upon the cause of action, the injuries being relied upon extending beyond that which was the basis of the application pursuant to s134AB(16)(b). Essentially, what had been argued at first instance before me in this Court was not the subject of argument when the matter arrived at the Court of Appeal. The Court of Appeal decision determined what happens after the successful litigant has passed through the gateway. The worker is then able to rely upon the total injury suffered in the relevant compensable circumstances. What the Court of Appeal was saying was that, once the injured worker satisfies the statutory test in relation to an injury sustained in a particular employment context, there can be reliance upon all aspects, physical and mental, of that injury.
In Georgopoulos, the Court of Appeal stated at paragraph [68]:
“The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad common sense way.”
This followed their Honours stating that if, for example, a worker suffered a crush injury to the hands, it is not necessary that the injury to each finger constitute a serious injury, or that each separately damaged bone, tendon, nerve or the like constitute a separate serious injury.
I would also refer to the following at paragraph [35]:
“There is no suggestion in the minister’s speech that s134AB 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.”
The amendments there referred to were those contained in the Accident Compensation (Common Law and Benefits) Act 2000, which effectively introduced the present scheme.
Ms Ryan and Ms Bourke also referred me to the decision of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260. At paragraph [41], his Honour stated as follows:
“… In a serious injury application the attention of the court is upon the specific injury and it is that which is the subject of the grant of leave or certification.”
In the present case, the specific injury to which the attention of the Court had been drawn in the earlier application before her Honour was injury to the wrists. It was in respect of that specific injury that the application was dismissed and leave refused. The decision of her Honour was not what could be described as an “all forms, all injuries to the arms” dismissal.
(d) Reference is made in the submissions on behalf of the defendant to the contents of the Hanks’ Report in August 2008. I am not of the view that this takes matters any further. A report is not a Second Reading Speech. Parts of a report, such as that provided by Mr Hanks QC, may be adopted. Other parts may not be. Observations in a Second Reading Speech can, be, and often are, considered, although ultimately it is the actual wording of the statutory provisions that prevails. In any event, the underlined portion of the extract from the Hanks’ Report contained in the defendant’s written submissions reads as follows:
“Allowing more than one application for the same injury arising from the same circumstances contradicts the principle (that there must be an end to the litigation), and is neither time nor cost-effective.”
I would point out that this observation refers to “the same injury arising from the same circumstances”. This simply takes us back to the argument as to what constitutes “the same injury”. In summary, I do not find the extract from the Hanks’ Report to be particularly helpful.
(e) I also agree with submissions made on behalf of the plaintiff that the vice addressed by s134AB(21) is that of a worker making multiple attempts to access the serious injury gateway for a particular injury in respect of which a previous attempt has been made. This does not prevent a worker from making a further attempt to access the gateway by relying on a different specific injury which has never been the subject of an earlier application. I also agree that it is not to the point that, if the plaintiff had been granted leave in respect of the bilateral carpal tunnel condition, he would then have been entitled to recover damages in respect of the injury to his shoulders. What the Court of Appeal determined in Georgopoulos was that, once through the serious injury gateway, a plaintiff may recover damages in respect of all components of compensable injury, but this does not preclude a worker from making a further attempt to access that gateway by means of an injury which has never been the subject of an application or of a determination by the VWA pursuant to s134AB(7). These arguments, whilst subsidiary in nature, also have some force.
(f) Another subsidiary argument with which I agree is that to the effect that, in its detailed judgment in Georgopoulos, the Court of Appeal made no criticism of the judgment at first instance. Indeed, no challenge was made in the appeal concerning the correctness of the original decision. The effect of the decision of the Court of Appeal was that Georgopoulos was permitted to seek to recover damages for injury sustained in the course of employment in a particular way and on a particular day, despite having made a previous unsuccessful serious injury application for a different injury sustained with the same employer on the same day and in the same way.
If the defendant’s argument is correct, the failed original serious injury application should have put an end to the right of Georgopoulos to claim for common law damages for injury sustained on the particular day and in the same way. I agree with the submissions on behalf of the plaintiff that this would have been “a perverse result”.
(g) I also agree with the argument on behalf of the plaintiff that the contrast between the wording of s104B (which requires a worker to include all injuries in a claim for compensation under s98C), and that employed in s123AB(21) (which employs quite different language), underlines the argument that the sections in question were intended to operate differently. Indeed, a worker can make a serious injury application without making a claim pursuant to s98C. Reference is made to s134AB(3)(b).
(h) In summary, I prefer and accept the arguments advanced on behalf of the plaintiff. The argument of Mr Gorton and Mr Gladman is, at least in part, quite ingenious in the manner in which the decision of the Court of Appeal in Georgopoulos is effectively used in reverse and applied to the serious injury application, as opposed to the scope of the ultimate trial. However, ultimately I do not accept the submissions advanced on behalf of the defendant.
Conclusion
73 I accept the arguments advanced on behalf of the plaintiff. I am of the view that the plaintiff, having been unsuccessful in relation to the application based upon the wrist injuries, is entitled to make a further application based upon the injuries to the shoulders suffered as a result of the same work processes.
74 I shall hear the parties as to the wording of any orders that are sought.
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