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Victorian WorkCover Authority v Brassington

Victorian WorkCover Authority v Brassington

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0033

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
GREGORY BRASSINGTON	Respondent

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JUDGES:	BEACH, KAYE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2021
DATE OF JUDGMENT:	30 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 236
JUDGMENT APPEALED FROM:	[2020] VCC 74 (Judge Purcell)

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ACCIDENT COMPENSATION – Workplace injury – Serious injury application – Worker injured right knee and ankle in single incident – Whether worker’s injuries gave rise to permanent serious impairment of function of right lower limb – Whether injuries sustained

to knee and ankle of same leg in single incident could be aggregated for purposes of

para (a) of definition of ‘serious injury’ in s 325(1) of Workplace Injury Rehabilitation and Compensation Act 2013 – Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 reconsidered –

Georgopoulos v Silaforts Pty Ltd (2012) 37 VR 232, Transport Accident Commission v Zepic [2013]

VSCA 232 and Lexa v Transport Accident Commission [2019] VSCA 123 referred to – Workplace

Injury Rehabilitation and Compensation Act 2013, ss 325(1) and 335(2)(d).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S E Gladman and	Russell Kennedy Lawyers
Mr R Paoletti
For the Respondent	Mr T P Tobin SC with	Arnold Thomas & Becker
Ms C Spitaleri
COURT OF APPEAL 459 Lonsdale Street, Melbourne, VIC 3000
BEACH JA KAYE JA OSBORN JA:

In February 2014, Mr Gregory Brassington (‘the plaintiff’) commenced
fulltime employment as a corrections officer, with the Department of Justice and
Community Safety (as it is now known), at the Metropolitan Remand Centre in
Truganina. At approximately 12:07 am on 26 July 2018, he was walking through a
poorly-lit area of the centre when he collided with a metal chair. The chair was
bolted to the floor, and the plaintiff suffered injuries to his right knee and right ankle
as a result of the incident.
By an originating motion filed in the County Court on 3 July 2020, the plaintiff
sought leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and
Compensation Act 2013 (‘the Act’) to commence a proceeding at common law claiming
damages for his injuries.
The application was heard over two days in January 2021. At the hearing of
the application, the plaintiff relied upon paragraph (a) of the definition of ‘serious
injury’ in s 325(1) of the Act (‘permanent serious impairment or loss of a body
function’). The body function relied upon by the plaintiff was the function of his
right lower limb. The plaintiff sought leave to commence a proceeding claiming
damages for ‘pain and suffering’ and ‘pecuniary loss damages’.[1]
[1] As those expressions are defined in s 325(1) of the Act.
At the hearing of the application, the Victorian WorkCover Authority (‘the
Authority’) accepted that the incident occurred and that the plaintiff suffered
physical injuries to his right ankle and right knee. The Authority submitted that the
plaintiff could not ‘aggregate the injuries to the right ankle and right knee…

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 236
Decision Date: 30 August 2021

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Brassington, the Victorian Court of Appeal considered the aggregation of injuries for the purposes of determining whether a serious injury had been sustained under the Workplace Injury Rehabilitation and Compensation Act 2013. The plaintiff, who was a prison officer, suffered injuries to his right knee and ankle in a single incident. The Court of Appeal examined whether these injuries could be aggregated to determine if there was a permanent serious impairment of the right lower limb, which would entitle the plaintiff to common law damages for pain and suffering. The Court of Appeal found that the plaintiff's injuries did not aggregate to cause a serious impairment of the right lower limb.

The key legal issues the court had to decide were whether the plaintiff's injuries to his right knee and ankle could be aggregated for the purposes of determining a serious injury under the Act, and if the plaintiff was entitled to common law damages for pain and suffering. The Court of Appeal reviewed previous cases such as Lu v Mediterranean Shoes Pty Ltd, Georgopoulos v Silaforts Pty Ltd, Transport Accident Commission v Zepic, and Lexa v Transport Accident Commission to determine the correct approach to aggregation of injuries. The Court concluded that while each injury was serious in itself, they did not aggregate to cause a serious impairment of the right lower limb. The Court emphasised that to aggregate injuries, there must be a serious impairment or loss of a specific body function, and not merely impairments of separate body functions.

The Court of Appeal held that the plaintiff's injuries did not meet the threshold for a serious impairment of the right lower limb, and therefore, the plaintiff was not entitled to common law damages for pain and suffering. The Court noted that while the injuries were serious individually, they did not combine to cause a serious impairment of a specific body function. The Court found that the plaintiff could still claim common law damages for pain and suffering in relation to each individual injury but not for the aggregation of the injuries. The Court of Appeal ultimately dismissed the appeal but allowed leave to appeal, finding the appeal to be sufficiently arguable.

In conclusion, the Victorian Court of Appeal held that the plaintiff's injuries to the right knee and ankle could not be aggregated to determine a serious impairment of the right lower limb. The Court emphasised that aggregation requires a serious impairment or loss of a specific body function, not merely impairments of separate body functions. As a result, the plaintiff was not entitled to common law damages for pain and suffering for the aggregated injuries but could claim such damages for each individual injury. The appeal was dismissed, but leave to appeal was granted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Authority does not seek to disturb the judge’s alternative findings that the injuries to the plaintiff’s right knee and right ankle each satisfied the statutory test for serious injury, but only with respect to pain and suffering. Thus, if the Authority is successful in this Court, the order made by the judge granting the plaintiff leave to commence common law proceedings claiming damages for pain and suffering and pecuniary loss damages would be varied so as to limit the leave granted to a claim for damages for pain and suffering only.[7] [7] In such a proceeding, as with the proceeding the plaintiff presently has leave to commence, the plaintiff would be able to claim pain and suffering damages for all of the compensable injuries suffered as a result of the incident: see Georgopoulos v Silaforts Painting Pty Ltd (2012) Background facts At a little after midnight on the night of 25/26 July 2018, the plaintiff was patrolling one of the units at the Metropolitan Remand Centre. The unit consisted of two wings running off a central dining area. To access the wings, the plaintiff was required to walk through the dining area where there were various metal chairs and tables which were bolted to the concrete floor. The plaintiff’s evidence was that, on the night of the incident, the lighting was turned down very low and he could not make out the dining chairs and tables. He described the incident as follows: As I weaved my way through the tables and chairs, I struck my right shin on one of the fixed chairs and hyperextended my right kneecap. As my right knee bent back, I fell forward onto one of the tables. I also injured my right ankle in the process. Later that day (26 July 2018), the plaintiff consulted his general practitioner, Dr Wijayathilaka. Subsequently, the plaintiff was referred to different specialists for his knee and ankle injuries. Various radiological examinations have been performed over time, and the plaintiff has also had significant amounts of physiotherapy. The plaintiff’s right knee injury has been diagnosed as a ‘right knee posterior horn medial meniscal tear with minor chondral thinning of the medial compartment’ and an ‘exacerbation of patellofemoral joint degeneration’. The diagnosis in respect of the right ankle injury is an ‘avulsion of the calcaneofibular ligament from [the] fibula with an effusion and peroneal tendon tenosynovitis’. In a report dated 10 December 2019, the plaintiff’s physiotherapist, Mr Hall, said that the plaintiff had the following restrictions: Since the incident, the plaintiff has been seen by a number of medical practitioners, either for the purposes of treatment or for the purposes of this case. Depending on the medical practitioner’s particular specialty, that practitioner has generally confined himself or herself to examining either the ankle or the knee. That said, we note: Having regard to the issues in this Court, it is only necessary to refer to that part of the judge’s reasons which deal with the question of whether the plaintiff could aggregate the right ankle injury with the right knee injury, so as to rely upon an impairment of the right lower limb.[8] [8] Reasons [12].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Moreover, we do not think that happenstance references in medical reports could be determinative on the issue of whether particular injuries could be aggregated because they impaired a function of a body part affected by those injuries. To the extent that medical evidence might be capable of being relevant on whether particular injuries could be aggregated, one would expect that such evidence would be expressly adduced for the purpose of explaining how particular injuries might combine to affect a particular body function. Conclusion The Authority’s proposed appeal is sufficiently arguable to justify a grant of leave to appeal. For the reasons given above, however, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

In Lexa, the Court held that the plaintiff’s bilateral shoulder injuries had not given rise to the loss or impairment of a single body function.[37] Accordingly, the plaintiff in that case was not permitted to aggregate his two shoulder injuries and their consequences into a single impairment of his shoulders. [37] Ibid [51]. Consideration In Humphries v Poljak, the majority (Crockett and Southwell JJ) held that it was impermissible, in an attempt to ascertain if a ‘serious long-term impairment’ has been shown to exist, to look at a number of ‘impairments’, not any one of which is a ‘serious long-term impairment’, and treat them as acting in total, so as to meet the requirement of the definition.[38] Their Honours held that a body function must be identified, and the enquiry then to be made was whether that function has been impaired or lost. Their Honours went on to say, however: It [the body function] may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.[39] [38] Humphries v Poljak [1992] 2 VR 129, 138. [39] Ibid. In Georgopoulos, this Court[40] elaborated on what was said by Crockett and Southwell JJ in Humphries v Poljak as follows: It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected. Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition. It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences. Section 134AB(38) then goes on to make ‘elaborate provision’ for the assessment of those consequences. In turn, it will be possible to determine whether a worker has suffered a serious injury by reference to a specific impairment of a body function, despite the fact that it may not be possible to determine which individual component or what combination of components of the compensable injury are causing that impairment. Thus, an impairment or loss of function of the thumb and right hand may result from nerve damage at the spine, shoulder, elbow or wrist coupled with tendon damage at the shoulder, elbow or wrist. If the worker is able to establish impairment in the relevant sense, then he or she is seriously injured. It is not necessary to disaggregate the causal mechanism, provided that the compensable injury results in the impairment which satisfies the serious injury criteria set down by s 134AB.[41] [40] Osborn JA and J Forrest and Beach AJJA. [41] Georgopoulos (2012) 37 VR 232, 246 [58]–[61] (citations omitted).