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Are you serious?

Are you serious?

By Catherine Sim

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Serious injury certificates granted by WorkCover or leave granted to pursue common law damages by the County Court should not limit the causes of action open to a worker in respect of their damages proceedings.

The Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Acts) govern the serious injury process. In order to make a claim for common law damages, a worker must prove, in one of three ways, that they have suffered a “serious injury”.1

The first avenue for a worker to prove “serious injury” is by an impairment assessment in accordance with the American Medical Association Guides. An injury which meets 30 per cent impairment or more will be considered a “deemed” serious injury as per s134AB(15) of the Accident Compensation Act 1985 and s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013.2 If no impairment benefits claim has been made, or if the 30 per cent impairment threshold is not reached, the worker may make an application for serious injury certificates to the WorkCover Authority (WorkCover).

WorkCover can grant the serious injury certificates if it is satisfied that the worker has suffered a serious injury as required by ss134AB(16)(a) and ss335(2)(c) of the legislation.3 If there is no deemed serious injury, nor a grant by WorkCover, the matter must proceed to court where the plaintiff must satisfy the judge that their injury is a serious injury in accordance with the “narrative test” as required by ss134AB(16)(b) and 134AB(19) and ss335(2)(d)(i) and (ii) and 335(5).4 The “narrative test” requires the plaintiff to prove that the consequences of the subject injury are “more than significant or marked and . . . at least very considerable” for a physical injury as outlined in s134AB(38)(c) and s325 (2)(c)5 and “serious to the extent of being severe” for a psychiatric injury as outlined in s134AB(38)(d) and s325(2)(d).6 Section 134AB(38)(e) and s325(2)(e) of the Acts impose additional requirements for economic loss.7

If the worker has a deemed serious injury, they will be entitled to pursue damages for both pain and suffering and economic loss (“both heads”). If the worker makes an application to WorkCover or seeks the leave of the court, the worker may make an application for both heads or for pain and suffering only.

With this brief outline, we see the multitude of outcomes that are possible in respect of a serious injury application. It becomes apparent that the manner in which the serious injury application is advanced can have consequences on the causes of action that can be relied on in subsequent damages proceedings. For example, during the serious injury process, if cause of action A is abandoned in preference of cause of action B and a serious injury grant is made on those terms, the plaintiff may be unable to rely on cause of action A in subsequent damages proceedings. Turning to the case law on the limits of serious injury grants, we can see the attempts to limit the causes of action available to the worker.

Marion Harvey v Methodist Ladies College

In Marion Harvey v Methodist Ladies College [2008] VSC 425 the worker was granted leave to pursue damages by Strong J. A writ was issued and an amended statement of claim filed. The draft statement of claim, required as part of the serious injury application and which formed the basis of the grant by Strong J, pleaded an injury occurring on 25 October 2001. The amendments sought to include a pleading that the worker had suffered her injury throughout the course of employment (being from 20 October 1999 to 25 October 2001). The defendant filed an amended defence, claiming that the worker was only granted leave by Strong J in respect of an injury sustained on 25 October 2001, and was therefore limited to that cause of action in her damages proceeding.8

An application was made to Beach J to determine the limit of the grant as a preliminary question. Beach J found that the worker in this case was clearly entitled to pursue damages for both an injury sustained on or about October 2001 and throughout the course of her employment from 20 October 1999. In reaching this conclusion, Beach J took into account:

  • that the general endorsement on the originating motion commencing the proceedings heard by Strong J claimed that the worker “suffered injury arising out of or in the course of or due to the nature of her employment with the first defendant between approximately 1991 to mid 2002”9
     
  • that the worker’s affidavit specified that the claim was framed to include a throughout the course claim.

The application to determine the preliminary matter in respect of the limit of the serious injury grant was, therefore, determined in the worker’s favour.10

A secondary matter regarding further injury occurring after October 2001, being an aggravation of the injury due to remaining at work, was also sought to be pleaded in the amended statement of claim. The grant of leave by Strong J precluded this as a separate cause of action, but Beach J held that if the injury was posited as a continuation or “natural and probable” consequence of the original injury then that was allowable. 11 The pleading in its form at the time of the ruling was deemed by Beach J to be inappropriate and embarrassing at law, and was struck out with a right, however, of the plaintiff to redraft the paragraph into a more appropriate form.12
 

Danny Kruisselbrink v Nationwide Maintenance Services

In Danny Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260 Forrest J was required to rule on whether a serious injury certificate granted by WorkCover was limited in its reach. The certificate, dated 9 February 2008, allowed for the worker bringing proceedings for both heads of damages “as a result of injuries sustain[ed] on 5 May 2005”.13 This certificate contained factual errors. First, the date of the certificate was incorrect. It predated the lodging of the application, which was not until April 2008. Second, the date of 5 May 2005 was not noted in either the claim form or the worker’s affidavit. It was also noted that the worker had not been at work on 5 May 2005.14 Forrest J addressed the limits of WorkCover to assess only two factors in relation to its decision to grant the serious injury certificate, being:

“(a) whether the injury arose out of, or in the course of, or due to the nature of employment, so the injury can be said to be compensable; and

(b) in accordance with that sub-section, whether the injury is related to employment on or after 20 October 1999”.15

Forrest J held that “where a worker demonstrates that his or her injury is indeed serious, and is related to his or her work, then a claim based on those aspects of the giving rise to that injury can be entertained at the damages trial”.16 Therefore, the certificate did not limit the worker to any particular cause of action for damages.
 

John Georgopoulos v Silaforts Painting

John Georgopoulos v Silaforts Painting Pty Ltd and Ors [2012] VSCA 179, heard before Osborn JA, Forrest J, and Beach AJJA, considered the limits of a serious injury grant. This case is unique, in that the appellant lodged two serious injury applications. The first, lodged on 22 July 2008, was in relation to his spine and left foot. 17 After this application was rejected by WorkCover, an originating motion was issued in December 2008. However, as the matter was issued out of time, the proceedings were dismissed with consent of both parties.18 The second serious injury application, lodged on 11 September 2009, was also for those injuries contained in the first application (being spine and left foot), as well as psychological injuries.19 The second serious injury application was rejected by WorkCover and originating motion proceedings were issued in January 2010. Bowman J found that the worker’s second serious injury application was valid only in relation to the claim for the psychological injuries.20 Subsequently, in January 2011 WorkCover granted a certificate for both heads in respect of psychological injuries consequent to a physical injury. The certificate expressly stated that the certificate was not granted in respect of the physical injuries.21 In February 2011, Bowman J granted leave on both heads in respect of psychological or psychiatric injuries.22 At first instance, when damages proceedings were initiated, the applicant sought to plead loss and damage flowing from the physical injuries in addition to the psychological injuries. Kaye J found in favour of WorkCover in respect of an application to have the claims, insofar as they related to physical injuries, struck out.23 On appeal, Osborn JA, Forrest J, and Beach AJJA found that it was clear that “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”.24

The worker was, therefore, entitled to pursue damages for both his physical and psychological injuries.
 

Zoe Kaltsis v Ice Design

In Zoe Kaltsis v Ice Design Pty Ltd [2015] VCC 28 (Kaltsis) the worker had two discrete causes of action. The first was the physical injury sustained from a fall from a ladder, and the second was a psychological injury resulting from perceived bullying on return to work. At the hearing of the originating motion, the plaintiff’s legal representatives conducted the proceeding on the basis that the psychological injury was related only to the perceived bullying, as opposed to being consequential to the physical injury, and it was on these grounds that the serious injury certificates were sought.25 The physical injuries were abandoned by the worker’s legal representatives at the originating motion. Misso J, in his ruling in respect of the originating motion, made it clear that the grant of leave to pursue common law damages on both heads was for the psychological injury alone.26 During the course of the damages process, an application was made to file an amended statement of claim, which sought to include the physical injuries sustained in the fall from the ladder. Parrish J heard the application. He reiterated that at the originating motion hearing, the worker, through her counsel, identified the psychiatric injury suffered as a result of the perceived bullying as being the injury relied on as the “serious injury”.27 On the facts of the case, Parrish J ruled that it was clear that the serious injury grant made by Misso J was limited to the psychological consequences flowing from the perceived bullying.28 The worker was not now permitted to include the physical injuries sustained from a fall from the ladder, as this was a separate cause of action which had been specifically abandoned by the worker at the originating motion hearing.

It is apparent on a reading of the above case law that the serious injury process is intended only as a gateway to common law damages. The expansion of serious injury grants to incorporate further causes of action is not always permissible, as seen in Kaltsis. A cause of action flows from the work related injuries. The requirement to prove “serious injury” for only one body part as a gateway process which allows the plaintiff to seek to recover common law damages is a reflection that the cause of action and work related injury held to be serious have a connection to each other, but that the serious injury application does not limit the plaintiff to any one cause of action. WorkCover and the courts must limit their assessment of the applications or originating motions to the question of whether the injury is compensable and work-related. Other rulings which go to this point include Thompson v Sanhan and Harrison v Forty Eighth Snowman.29


Catherine Sim is a lawyer with Adviceline Injury Lawyers.

1. Danny Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260, at [30].

2. Accident Compensation Act 1985 (AC Act), 134AB(15); Workplace Injury Rehabilitation and Compensation Act 2013 (WIR Act), s335(1).

3. AC Act, s134AB(16)(a); WIR Act, s335(2)(c).

4. AC Act, s134AB(16)(b); WIR Act, s335(2)(d)(i) and (ii) and 335(5).

5. AC Act, s134AB(38)(c); WIR Act, s325(2)(c).

6. AC Act, s134AB(38)(d); WIR Act, s325(2)(d).

7. AC Act, s134AB(38)(e); WIR Act, s325(2)(e).

8. Marion Harvey v Methodist Ladies College [2008] VSC 425, at [3].

9. Note 8 above, at [8].

10. Note 8 above, at [11].

11. Note 8 above, at [14].

12. Note 8 above, at [15].

13. Danny Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260, at [38].

14. Note 13 above, at [39].

15. Note 13 above, at [45].

16. Note 13 above, at [49].

17. John Georgopoulos v Silaforts Painting Pty Ltd and Ors [2012] VSC 56, at [5].

18. Note 17 above, at [6].

19. John Georgopoulos v Silaforts and Ors [2012] VSCA 179, at [11].

20. Note 19 above, at [17].

21. Note 19 above, at [18].

22. Note 19 above, at [19].

23. Note 17 above, at [41].

24. Note 19 above, at [35].

25. Zoe Kaltsis v Ice Design Pty Ltd [2015] VCC 28 , at [10].

26. Zoe Kaltsis v Ice Design Pty Ltd [2012] VCC 623, at [11].

27. Note 25 above, at [39].

28. Note 25 above, at [40].

29. [2015] VCC 1027; [2016] VCC 538.

 


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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