Victorian WorkCover Authority v Brassington

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 to an
overall claimed impairment or loss of body function of the right leg’.[2] The Authority
also submitted that, if the injuries could not be aggregated, neither injury resulted in
consequences which satisfied the statutory test for ‘serious injury’ (the test being
whether, when judged by comparison with other cases, in the range of possible
impairments or losses of a body function, the particular injury could be fairly
described as being ‘more than significant or marked, and as being at least very
considerable’).[3]
[2] Brassington v Victorian WorkCover Authority [2021] VCC 74, [9] (‘Reasons’).
[3] Ibid [10].
On 10 February 2021, the judge granted the plaintiff leave to bring the
proceedings for the recovery of damages for pain and suffering and pecuniary loss.
In his reasons for judgment, the judge concluded that:

(a) the injuries to the plaintiff’s right knee and right ankle could be aggregated
into a single impairment of the function of the plaintiff’s right lower limb;[4]
[4] Ibid [19]–[20], [54(a)].

(b) the consequences of the right lower limb impairment satisfied the statutory
test for ‘serious injury’ with respect to pain and suffering and loss of earning
capacity;[5] and
[5] Ibid [34], [41], [43] [54(b)].

(c) if, contrary to his primary conclusion, the injuries to the plaintiff’s right knee
and right ankle could not be aggregated into a single impairment of the
function of the right lower limb, then each of those injuries would
independently satisfy the statutory test for serious injury with respect to pain
and suffering, but not loss of earning capacity.[6]
[6] Ibid [48]–[49], [52]–[53], [54(c)–(d)].

The Authority now seeks leave to appeal against the judge’s decision, on the
sole proposed ground of appeal that:
The judge erred in holding that the injuries to [the plaintiff’s] right knee and
right ankle could be aggregated into a single impairment of body function of
the right leg.
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:

• standing tolerance 20 minutes
• walking tolerance 20 minutes
• driving tolerance 20 minutes (then needs a break for 10 minutes)
• stairs tolerance one flight
• unable to kneel
• unable to deep knee bend
• unable to use a ladder
• significant difficulty on uneven surfaces (brace on)
• lifting, carrying limited to 5 kg no more than 12 times per hour.

In relation to the plaintiff’s work capacity and quality of life, Mr Hall said:
Both regions have and are currently affecting his work capacity and his quality of life status.

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:

• Dr Kennedy, a sports and industrial physician who examined
the plaintiff, in January 2020, at the request of his solicitors,
provided a report in which he expressed the opinion that the
plaintiff should undergo further evaluation ‘by a lower limb
consultant orthopaedic surgeon’ in relation to his injuries; and

• Dr Wyatt, an occupational physician who examined the plaintiff
in August 2020, at the request of the Authority’s solicitors,
referred to ‘Limited lower limb functional abilities’ as having
been reported.
4 THE COURT

Judge’s reasons

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].
The judge recorded that the defendant accepted that, ‘in the right factual
circumstances you might have injuries to two very closely connected body parts that
would be said to impair the one body function’.[9] The judge noted the defendant’s
submission that, on the facts of this case, the injury to the right ankle and right knee
‘are not so closely connected’.[10]
[9] Ibid [13].
[10] Ibid.
The judge then referred to the defendant’s reliance upon Lu v Mediterranean
Shoes Pty Ltd,[11] where this Court held that the plaintiff in that case could not
aggregate separate injuries to the right shoulder and right elbow for the purpose of
making a serious injury application in respect of the function of the right arm. The
judge also referred to Lexa v Transport Accident Commission,[12] where this Court said:
While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from a single
incident, the impairment must be to one ‘body function’.[13]
[11] (2000) 1 VR 511 (‘Lu’).
[12] [2019] VSCA 123 (‘Lexa’).
[13] Ibid [43].
Additionally, the judge referred to Target Australia Pty Ltd v Moloney,[14] in
which this Court held that a body function denoted ‘a physical act or operation, not
some “applied” activity’.[15]
[14] [2000] VSCA 124 (‘Target’).
[15] Ibid [18].
Having referred to the defendant’s submissions, and to Lu, Lexa and Target,
the judge then said:
For the following reasons, I conclude that the facts of this application before the Court demonstrate a factual circumstance where two injuries impair the one body function:

(a)

Firstly, the injuries arise from the one incident, unlike the factual circumstance in Lu.

(b)

Secondly, in my opinion and based on the medical evidence in this case, the two injuries are so closely connected so as to impair the one body function.

(c)

Thirdly, as a matter of common sense, the ankle and knee are so closely connected so as to affect the physical act or operation of the lower limb.

(d)

Fourthly, the plaintiff in the present case does not rely upon some applied activity such as the function of standing or walking or, as in Lexa, the body function of lifting an object with both arms.

(e)

Fifthly, I am fortified in my conclusions by the fact that his treating General Practitioner, Dr Deepakanthi Wijayathilaka, has been treating the right ankle and knee injuries as an impairment affecting the right lower limb, as has the treating physiotherapist Mr Andrew Hall.[16]
[16] Reasons [19] (footnotes omitted).

Parties’ contentions

The Authority submitted that this Court has previously recognised ‘each of
the knee and the foot (or ankle) as a separate body function in its own right’. In
support of that submission, the Authority referred to Fleming v Hutchinson,[17] a case
concerning the function of a foot; Haden Engineering Pty Ltd v McKinnon,[18] a case
concerning the function of a foot or ankle; and Transport Accident Commission v
Kamel[19] and Davies v Nilsen,[20] two cases concerning the function of the knee.
[17] Reported in Humphries v Poljak [1992] 2 VR 129, 146.
[18] (2010) 31 VR 1, 6 [19]–[21].
[19] [2011] VSCA 110, [5].
[20] [2014] VSCA 278, [2].
The Authority submitted that, consistently with Lu and this Court’s decision
in Transport Accident Commission v Zepic,[21] separate injuries to the knee and the foot of the same leg should not ordinarily be regarded as having resulted in the
impairment or loss of a single body function. The Authority accepted that a worker
who suffered a crush injury to the whole of one leg — and therefore suffered
separate injuries to each part of that leg, including the knee and the foot — could
properly be said to have suffered a single impairment or loss of a body function. It
contended, however, that the judge erred in concluding that the facts of the present
case took it outside the ordinary position contemplated by the decisions in Lu and
Zepic.
[21] [2013] VSCA 232 (‘Zepic’).
Dealing with each of sub-paragraphs (a) to (e) of the relevant paragraph of the
reasons (set out at [17] above) in which the judge expressed his conclusion that the
plaintiff’s two injuries impaired the one body function, the Authority made the
following submissions:

(1) As to sub-paragraph (a), the fact that the two injuries in Lu were sustained in
different compensable circumstances was irrelevant to the Court’s conclusion
that the shoulder and elbow of the same arm constituted separated body
functions.
(2) The judge’s statements in sub-paragraphs (b) and (c) ‘are entirely conclusory
and betray no attempt to engage with the analysis undertaken in Lu, Zepic and
Lexa’.
(3) Contrary to sub-paragraph (d), the fact that the plaintiff did not expressly rely
on ‘some applied activity such as the function of standing or walking’ was
irrelevant.
(4) Contrary to sub-paragraph (e), neither Dr Wijayathilaka nor Mr Hall treated
the injuries to the plaintiff’s right knee and right ankle as ‘an impairment
affecting the right lower limb’. At different times, Dr Wijayathilaka referred
the plaintiff to different orthopaedic surgeons for treatment either of the right
knee or the right ankle and Mr Hall, in his reports, distinguished between the
right knee and the right ankle.

In response, the plaintiff supported the reasoning of the judge. In respect of
7 THE COURT
the submission that sub-paragraphs (b) and (c) are conclusory and show no analysis,
the plaintiff noted that there is no proposed ground of appeal challenging the
adequacy of the judge’s reasons.
The plaintiff submitted that the judge was entitled to find that, as a matter of
common sense, the ankle and the knee are so closely connected as to affect the
physical act or operation of the lower limb. The plaintiff submitted that this finding
was consistent with this Court’s observation in Georgopoulos[22] that, in relation to the
notion of serious injury, ‘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’. The plaintiff submitted that this observation applies equally to the concept of
a ‘body function’.
[22] (2012) 37 VR 232, 247–8 [68].
Next, the plaintiff contended that it was irrelevant that Dr Wijayathilaka and
Mr Hall identified separate injuries to the plaintiff’s right knee and ankle. The
identification of two separate injuries did not equate to the identification of two
separate body functions. The plaintiff submitted that the judge was entitled to find
that Dr Wijayathilaka and Mr Hall had been treating the right ankle and knee
injuries which had caused an impairment affecting the right lower limb.
Finally, the plaintiff submitted that the fact that other cases had recognised
the knee and ankle as separate body functions was not relevant, or determinative in
any way, to the resolution of the issues in this case. Each case has to be decided on
its own facts, including whether a body function had been impaired or lost by reason
of two or more injuries acting together to cause such impairment or loss.
Existing authorities
The proper consideration of the issue in dispute between the parties
commences with this Court’s decision in Lu. Having regard to the importance of the
decision in Lu to the resolution of the issue between the parties, it is necessary to
examine that decision, and the facts which gave rise to it, in some detail.
Lu v Mediterranean Shoes Pty Ltd
Mr Lu worked for Mediterranean Shoes Pty Ltd between 1990 and 1997. In
about July or August of 1995, he began experiencing pain on the outer side of his
right elbow and just above it. Subsequently, on 4 September 1995, he was struck on
the right shoulder by a mould which fell off a conveyor belt. An issue in Lu was
whether Mr Lu’s elbow injury could be aggregated with his right shoulder injury for
the purpose of establishing that he had suffered a ‘serious long-term impairment or
loss of a body function’[23] — the body function being the function of the right arm.
[23] Paragraph (a) of the definition of ‘serious injury’ in s 135A(19) of the Accident Compensation
The court held that Mr Lu could not aggregate his elbow and shoulder
injuries for the purpose of establishing a serious long-term impairment of the
function of his right arm. The principal judgment was delivered by Chernov JA
(with whom Winneke P agreed). Chernov JA said:
In my view, the short answer … is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and
his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s 135A(19)(a). Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.
…
Since the applicant for leave can only recover damages in respect of an injury that was caused by a relevant incident (for which the proposed defendant is relevantly responsible) it is only in respect of that injury, namely, the injury which has a causal nexus with the relevant incident, that the injured worker can bring a proceeding to recover damages and it is that injury that must be
shown to be a ‘serious injury’. This principle was recognised by Southwell
and Teague JJ in Petkovski v Galletti where their Honours observed that an injured person may recover damages only for such injuries as have resulted from a particular incident (for which the defendant is relevantly responsible). That incident must have been the cause of the injury in respect of which the injured person seeks to claim damages. According to their Honours, the
operation of this ‘long established principle’ has not been affected by the Act.
No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant
must demonstrate that that injury is a ‘serious’ one. But where leave is
sought in respect of two or more workplace injuries, whether the applicant
must establish that each is a ‘serious injury’ or whether they can be looked at
together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.
Mr Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v Poljak on this issue, that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long term impairment, and see if, together, they constitute an impairment which is serious and long term. Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. Stone v Jarvis, one of the applications considered by way of appeal in Humphries v Poljak, is an example where injuries were relevantly aggregated. But no such aggregation
is permissible if the non ‘serious injuries’ which impair the one body function
have been caused by separate and unrelated incidents. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately. This follows from the principle stated by Southwell and Teague JJ in Petkovski, to which I have referred and from the operations of the provisions of the Act to which I have also referred.
Thus, the scheme of the legislation prohibits the relevant aggregation of two
consecutive workplace injuries (neither of which is a ‘serious injury’) that
have arisen from discrete incidents notwithstanding that they impair the one
body function.
…
Further, in my view, … nothing that was said by the majority in Humphries v
Poljak supports the plaintiff’s submission that the two injuries in this case can
be relevantly aggregated. It is true that, in the context of determining if a body function has been relevantly impaired, their Honours said that the
impairment may have been caused by ‘two or more injuries acting together to cause such impairment ...’. But that was said in the context of the injuries having arisen from the one incident and there is nothing in their Honours’
reasons from which it could be inferred that they intended to extend what they said to injuries that have arisen from two or more discrete incidents. To the contrary, in my view, their Honours intended such aggregation to be limited to injuries that impair the one body function and which have arisen from the one incident. Their Honours were well aware that, as I have
10 THE COURT
mentioned previously, this result follows from the wording of the Act. Moreover, one of their Honours, namely, Southwell J, joined in saying in Petkovski, that an injured person can only claim damages flowing from injuries that have resulted from a relevant incident, namely, the incident that has caused the injury.[24]
[24] Lu (2000) 1 VR 511, 519–521 [23]–[29] (citations omitted).

In concluding that Mr Lu could not aggregate his elbow injury with his
shoulder injury in order to establish a serious injury in relation to the function of his
arm, Chernov JA observed that it was common ground between the parties in that
case that no claim for damages could be brought by Mr Lu in respect of his elbow
injury.[25] Thus, Chernov JA held that a plaintiff seeking to recover common law
damages in respect of a shoulder injury could not combine an unrelated elbow injury
for the purpose of showing that he had suffered a serious impairment of the function
of the arm, entitling him to commence a common law proceeding in relation to the
injury to the shoulder.
[25] Ibid 521–2 [31].
Buchanan JA agreed with Chernov JA that the appeal in Lu should be
dismissed, substantially for the reasons given by Chernov JA.[26] His Honour then
[26] Ibid 512 [2].
said:
I think that the identification of a body function for the purpose of
determining the application of paragraph (a) of the definition of ‘serious
injury’ in s 135A(19) of the Act depends only upon the existence of
impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.
It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov JA that injuries can only be aggregated if they are the result of one event or incident.
Paragraph (a) of the definition of ‘serious injury’ is enigmatic in that it does
not provide for a relationship between an injury and impairment or loss of a body function. The answer is to be found in the context in which the
definition appears. The definition of ‘serious injury’ is part of a set of
provisions regulating the ability of an injured worker to recover damages at common law. If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition. The only relevant impairment or loss of a body function is that resulting from the defendant's
wrongful act or omission the subject matter of the plaintiff’s cause of action.[27]
[27] Ibid 512–3 [3]–[5].
In this Court, the Authority submitted that the ratio of Lu was that the injury
to Mr Lu’s right shoulder and the injury to his right elbow impaired two separate
body functions, and therefore could not be relevantly aggregated.[28] The Authority
submitted that this was the primary basis upon which Chernov JA (with whom
Winneke P agreed) held that Mr Lu could not aggregate his shoulder and elbow
injuries into an impairment of the function of his right arm. The Authority
submitted that its analysis of Lu was supported by this Court’s decisions in Zepic and
Lexa. Accordingly, we now turn to those decisions.
Transport Accident Commission v Zepic
[28] Ibid 519 [23].
Zepic was a case in which this Court was required to consider whether the
function of the lumbar spine and the cervical spine are two separate body functions,
or whether injuries suffered to the cervical and lumbar spines in the one transport
accident could be aggregated for the purpose of determining whether an injured
plaintiff has suffered a serious long-term impairment of the function of the spine.
Maxwell P (with whom Tate JA and Garde AJA agreed) commenced the relevant
part of his analysis with an examination of Lu. After referring to the judgments of
Chernov JA[29] and Buchanan JA,[30] Maxwell P said:
[29] Ibid.
[30] Ibid 512 [3].
By majority, therefore, this Court concluded that the shoulder and the elbow
were ‘separate body functions’. The same was said — by way of illustration
— to be true of injuries to the foot and the knee of the same leg. Although
both injuries would have ‘a detrimental effect on the use of that leg’, they
should not ordinarily be regarded as having impaired the one body
function.[31]
[31] Zepic [2013] VSCA 232, [126].

32	On the question of whether or not a plaintiff could aggregate an impairment of the cervical spine and an impairment of the lumbar spine, so as to produce a

single impairment of a single body function — being that of the spine — Maxwell P
observed that, at that time, there had been no decision of this Court on that issue.
His Honour then referred to and analysed a number of County Court decisions, the
majority of which had accepted that the function of the spine could be regarded as a
single body function and that ‘damage to vertebral levels in a single incident can be
aggregated’.[32] Maxwell P held that the occasion for challenging the ability of a
[32] Ibid [130]–[135].
plaintiff to contend that impairments of the cervical and lumbar spines could be
aggregated had ‘long since passed’.[33] His Honour said that it would work a ‘great
unfairness’ if this Court were to uphold a challenge to the correctness of this view,
even if it otherwise had merit.[34] Maxwell P then said:
As to the merits, it is of significance, in my view, that the view now challenged has been arrived at by a number of different judges at first instance, many of whom have very substantial experience in this area of law
and practice. And, if I may say so respectfully, their Honours’ reasoning on
the issue is clear and cogent. If there is now to be a change in the settled law
on this question, it will have to be made by Parliament.[35]

Lexa v Transport Accident Commission
[33] Ibid [138].
[34] Ibid [139].
[35] Ibid.

Lexa was another case involving a plaintiff injured in a transport accident.
The plaintiff in Lexa suffered injuries to his shoulders in the transport accident. The
relevant issue, so far as the present case is concerned, was whether the judge erred in
not aggregating the effects of injuries to the plaintiff’s right and left shoulders. After
referring to the judgments of Chernov JA and Buchanan JA in Lu, this Court (Kyrou,
Kaye and Emerton JJA) said:
While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from a single
incident, the impairment must be to one ‘body function’. The majority
considered that an effect on movement of an arm resulting from separate injuries to the shoulder and the elbow is not an impairment to one body function.[36]
[36] Lexa [2019] VSCA 123, [43].
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).
Any significant injury to a knee is likely to impair the function of that knee.
Similarly, any significant injury to an ankle could be expected to impair the function
of that ankle. In each such case, one might equally expect the injury to the knee and
the injury to the ankle to impair the function of the leg of which they form a part.
What the judge did in the present case — as contemplated by the majority in
Humphries v Poljak, and by this Court in Georgopoulos — was to hold that a body
function (the function of the plaintiff’s right leg) had been impaired by reason of two
injuries (the injuries to the knee and the ankle) acting together to cause that
impairment.
Moreover, the course the judge took is relevantly indistinguishable from the
course permitted by this Court’s decision in Zepic in respect of injuries affecting the
cervical spine and the lumbar spine: namely, that injuries to those body parts (the
cervical spine and the lumbar spine), acting together, can result in a permanent
serious impairment of the function of the whole spine.
In Lu, Chernov JA commenced his analysis by saying that ‘the short answer’
to the plaintiff’s attempt to aggregate his elbow injury (suffered in July/August
1995) with his shoulder injury (suffered on 4 September 1995) was that the two injuries impaired two separate body functions, and therefore could not be
aggregated. This conclusion was stated briefly, and was not followed by any
detailed analysis, save for reference to an example of a case involving ‘an injury to
the big toe of one foot and a later injury to the knee of the same leg’.[42] His Honour’s
use of the word ‘later’ obscures the question of whether his Honour intended to
convey that, ordinarily, one cannot aggregate an injury to the shoulder with an
injury to the elbow (suffered in the same incident) for the purpose of establishing an
impairment of the relevant arm; or whether his Honour intended to confine his
‘short answer’ to cases where the two injuries were suffered in different
circumstances.
[42] Lu (2000) 1 VR 511, 519 [23] (emphasis added).
All of that said, having provided ‘the short answer’, Chernov JA’s judgment
then deals in considerable detail with the issue of whether a plaintiff may combine
separate injuries suffered in different circumstances for the purpose of establishing a
relevant impairment. His Honour, in passages we have already extracted, concluded
that such an aggregation was not permissible. To permit the aggregation of two or
more injuries suffered in different circumstances would be contrary to the text of the
relevant serious injury provisions, and also their purpose: namely, to bar the
bringing of proceedings on causes of action unless the relevant injury suffered in the
particular incident or compensable circumstances gave rise to a serious injury as
defined.
The reasons of Chernov JA in Lu need to be read in the light of the facts of that
case. As we have already noted, Lu was a case in which the plaintiff sought leave to
commence a proceeding for damages in respect of a shoulder injury suffered as a
result of an incident which occurred in September 1995. For the purpose of
satisfying the serious injury requirements of the Accident Compensation Act 1985,
however, the plaintiff sought to aggregate an unrelated pre-existing elbow
impairment to his shoulder impairment for the purpose of establishing that the
shoulder impairment was serious within the meaning of the legislation. Chernov JA
explained in considerable detail why such a course was plainly impermissible.
When one analyses Chernov JA’s judgment in the light of the facts in Lu, one
sees that any conclusion that it was generally impermissible to aggregate a shoulder
injury with an injury to the elbow of the same arm was unnecessary for the purposes
of the decision, and clearly obiter. Without needing to decide whether an injury to
an elbow could be aggregated with an injury to the shoulder of the same arm, when
both injuries were suffered in the same incident, the attempt by the plaintiff to
aggregate his earlier elbow impairment with his shoulder impairment so as to make
the shoulder impairment ‘serious’, or for the purpose of establishing that he suffered
from an injury or impairment to his arm (for which he was not seeking damages),
was impermissible for the reasons given by Chernov JA in his Honour’s extensive
discussion of multi-incident cases.[43]
[43] Ibid 519–522 [25]-[32].
In oral argument, the Authority accepted that a person who suffered ‘crush
injuries affecting the whole leg where every part of the leg is injured including the
knee and the ankle’ would be able to satisfy the statutory concept of serious injury
by establishing a serious impairment of the function of the leg. When asked about a
crush injury in which the tibia and fibula were merely scraped and not significantly
crushed, counsel for the Authority accepted that, in such a case, some inquiry might
need to be made as to the significance of any injury to the leg between the knee and
the ankle. Counsel submitted that the relevant issue was the ‘closeness of the
connection between the two injuries’. In relation to ‘closeness’, he submitted that it
was ‘anatomical closeness’, not ‘physical closeness’ which was important —
‘closeness in a medical sense’.
With respect to the possible example of a comminuted compound fracture
halfway along the tibia and fibula which disrupts the function of the knee and the
ankle, counsel for the Authority submitted that there would be two separate
impairments of the knee and the ankle. While it might be possible to aggregate the fractures with either the knee or the ankle, it was submitted that it would be
impermissible to aggregate the fractures to both the ankle and the knee. Counsel
submitted that the question of whether the fractures could be aggregated either with
the knee or the ankle depended on whether they could be combined ‘in a medical
sense’ to bring about either an impairment of the knee or an impairment of the ankle.
In relation to the Authority’s concession that a crush injury affecting the
whole of a leg ‘including the knee and the ankle of that leg’ might give rise to a
relevant impairment of the function of that leg, we asked counsel for the Authority
whether a single incident in which a leg is wrenched might equally give rise to a
relevant impairment of the function of that leg. Counsel replied:
That might well be so, your Honour. The logic of our concession … is that the
crush injury affected every part of the leg. And so it would be artificial in such a case, we say, to be attempting to distinguish between impairment
consequences at each level of the leg, and that’s why we say a crush injury
would certainly satisfy the test. A wrenching injury might be the same,
depending on the facts.
In applying the provisions of s 325 of the Act in an application under
s 335(2)(d), it is important to remember that these provisions are, as J Forrest J said in
Acir v Frosster Pty Ltd,[44] gateway provisions. They do not involve any relevant
determination affecting the assessment of any damages which might be assessed in a
subsequent common law proceeding.[45] Moreover, the delineation of a particular
body function (or functions) as having been permanently and/or seriously impaired
has no impact in any subsequent common law proceeding which involves the
assessment of damages for each of the injuries suffered as a result of a pleaded
incident or set of compensable circumstances.
[44] [2009] VSC 454.
[45] See Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover
The serious injury provisions being gateway provisions, a sensible, pragmatic and consistent approach should be taken in relation to the identification of an appropriate body function, in any application in which it is sought to establish that a
particular body function has suffered the requisite impairment as a result of a
particular incident or set of compensable circumstances. To that end, the following
observations in Georgopoulos are apposite:
The human body is a complex multicellular organism. The relationship between its components is the subject of continuing research and progressive medical understanding. It cannot readily be supposed that Parliament intended that the application of the notion of serious injury depended upon precise medical diagnostic differentiation between the individual components of an injury suffered in the causal circumstances envisaged by s 134AB. The
more probable view is that Parliament’s intention was that the relevant
concept of injury was to be understood in a broad common sense way.[46]
[46] Georgopoulos (2012) 37 VR 232, 247–8 [68].
Following this Court’s decision in Zepic, it is now settled that injuries to the
cervical and lumbar spines (or indeed injuries to any different levels of the spine)
suffered in the one incident or set of compensable circumstances, may be aggregated
for the purpose of establishing a serious impairment of the function of the spine. In
principle, there is no reason why the same approach should not be taken with
respect to different parts or levels of a leg or an arm. If a leg or an arm is injured in
two or more places, in the one incident or set of compensable circumstances, and the
function of that leg or arm is thus impaired, there is no principled reason why those
injuries cannot be aggregated for the purpose of determining whether the injured
person has an impairment of the relevant limb that satisfies the statutory definition
of ‘serious injury’.

It follows that, to the extent that the majority in Lu held that ordinarily a
plaintiff who suffers injuries to the shoulder and elbow of the one arm (or knee and
ankle of the one leg), in the one incident or set of compensable circumstances, cannot
aggregate those injuries for the purpose of establishing a permanent serious
impairment of the relevant limb, we disagree. In our respectful opinion,
Buchanan JA was correct when he said that an injured shoulder and an injured
elbow can properly be regarded as resulting in an impairment of the body function of the arm.[47] Were it necessary for us to say, we would conclude that, to the extent
that Lu holds otherwise, it is plainly wrong.
[47] Lu (2001) 1 VR 511, 512 [3].
Contrary to the Authority’s submission, the fact that many cases since Lu may
have been resolved, on the basis that it was impermissible to aggregate injuries
suffered in the same incident or compensable circumstances, to the shoulder and
elbow of the same arm (or the foot and the ankle of the same leg), is no impediment
to this Court determining the proper operation and application of the serious injury
provisions in the Act (and the relevantly equivalent provisions in the Accident
Compensation Act 1985 and Transport Accident Act 1986).
It cannot be said that the occasion for the plaintiff in this case to challenge any
inability to aggregate a knee and an ankle injury suffered in the same incident has
‘long since passed’.[48] Unlike the circumstances in Zepic, where the Transport
Accident Commission chose ‘for reasons best known to itself’,[49] not to challenge
what had become a settled position, it would work a significant ‘unfairness’[50] to the
plaintiff if this Court were to reject his submissions (even if they otherwise had
merit) on the basis that earlier plaintiffs had not sought to make the contention he
made to the judge.
[48] Cf Zepic [2013] VSCA 232, [138].
[49] Ibid.
[50] Ibid [139].
For the above reasons, the judge was correct when he held that the plaintiff
could aggregate his ankle and knee injuries, for the purpose of establishing that the
function of his right lower limb had suffered a permanent serious impairment.[51] A
common sense[52] and pragmatic approach to the relevant provisions of the Act
permitted the plaintiff to contend that the injuries to his ankle and knee impaired the
function of his right lower limb. Upholding that contention gave the operation of those provisions an application which is consistent with one already accepted in
relation to cases where injuries to different levels of the spine have been held to
impair the function of the whole spine.
[51] Reasons [19]–[20], [54(a)].
[52] See Georgopoulos (2012) 37 VR 232, 248 [68].
That said, and contrary to the judge’s view,[53] we do not think that the medical
evidence in this case assisted in resolving the issue in dispute between the parties.
While there were references in the medical evidence to the plaintiff’s right leg and
his right lower limb, his treatment included treatment by practitioners whose
specialty was either the knee or the ankle; and much of his treatment was directed
either to the ankle or the knee, depending upon the symptoms or problems from
which the plaintiff was suffering from time to time.
[53] Ibid [19(b) and (e)].
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.

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1 THE COURT

2 THE COURT

37 VR 232, 234 [3]–[4], 249 [79] (‘Georgopoulos’); Museums Victoria v Susnjara [2021] VSCA 166,
[74(3)].
3 THE COURT

5 THE COURT

6 THE COURT

8 THE COURT

Act 1985, in force at the time Mr Lu suffered injury, was defined as a ‘serious long-term impairment or loss of a body function’.
9 THE COURT

11 THE COURT

12 THE COURT

13 THE COURT

14 THE COURT

15 THE COURT

16 THE COURT

17 THE COURT

Authority (2018) 57 VR 545, 568–9 [71]; Victorian WorkCover Authority v Papaconstantinou [2021]
VSCA 145, [60].
18 THE COURT

19 THE COURT

20 THE COURT

21 THE COURT

•	standing tolerance 20 minutes
•	walking tolerance 20 minutes
•	driving tolerance 20 minutes (then needs a break for 10 minutes)
•	stairs tolerance one flight
•	unable to kneel
•	unable to deep knee bend
•	unable to use a ladder
•	significant difficulty on uneven surfaces (brace on)
•	lifting, carrying limited to 5 kg no more than 12 times per hour.

(a)	Firstly, the injuries arise from the one incident, unlike the factual circumstance in Lu.
(b)	Secondly, in my opinion and based on the medical evidence in this case, the two injuries are so closely connected so as to impair the one body function.
(c)	Thirdly, as a matter of common sense, the ankle and knee are so closely connected so as to affect the physical act or operation of the lower limb.
(d)	Fourthly, the plaintiff in the present case does not rely upon some applied activity such as the function of standing or walking or, as in Lexa, the body function of lifting an object with both arms.
(e)	Fifthly, I am fortified in my conclusions by the fact that his treating General Practitioner, Dr Deepakanthi Wijayathilaka, has been treating the right ankle and knee injuries as an impairment affecting the right lower limb, as has the treating physiotherapist Mr Andrew Hall.[16]

(1)	As to sub-paragraph (a), the fact that the two injuries in Lu were sustained in
different compensable circumstances was irrelevant to the Court’s conclusion
that the shoulder and elbow of the same arm constituted separated body
functions.
(2)	The judge’s statements in sub-paragraphs (b) and (c) ‘are entirely conclusory
and betray no attempt to engage with the analysis undertaken in Lu, Zepic and
Lexa’.
(3)	Contrary to sub-paragraph (d), the fact that the plaintiff did not expressly rely
on ‘some applied activity such as the function of standing or walking’ was
irrelevant.
(4)	Contrary to sub-paragraph (e), neither Dr Wijayathilaka nor Mr Hall treated
the injuries to the plaintiff’s right knee and right ankle as ‘an impairment
affecting the right lower limb’. At different times, Dr Wijayathilaka referred
the plaintiff to different orthopaedic surgeons for treatment either of the right
knee or the right ankle and Mr Hall, in his reports, distinguished between the
right knee and the right ankle.

[2021] VSCA 236

30 August 2021