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Published: 24 August 2012
Author: Ryan Carlisle Thomas

Breakthrough on serious injury gateway at Vic Court of Appeal

Supposing you're at work. One day on the job, you fall, injuring your neck very badly and also your knee. You are rushed to hospital and your neck is operated on. There is a problem with the knee but it is of less severity than the neck.

As you're recovering, you continue to have serious problems with your neck and less serious but still quite debilitating issues with your knee. The neck injury is considered to be a Serious Injury under WorkCover, but the knee injury is considered to be a bad injury but not a Serious Injury.

Will WorkCover benefits and compensation cover you for the knee injury in addition to the neck?

You'd think so, wouldn't you? Well, WorkCover have been arguing that you would be entitled to lump sum compensation for the neck injury only - as that injury is serious and the knee is not!!!

The circumstances of this case are a little different to my illustration above. However, the implications will stretch well beyond this one case to examples like that above.

"Serious Injury": What's in a definition?

It was some twenty-five years ago that the first "serious injury" regime was introduced to govern claims for damages at common law brought by injured workers.

The concept of the "serious injury" regime is simple. It says that an injured worker is not entitled to bring a claim for damages at common law, or in other words, is not entitled to sue his or her employer for negligence, unless he or she first establishes that the consequences of the injury or injuries he or she suffered out of or in the course of their employment constitute a "serious injury". This is within the meaning of the Accident Compensation Act 1985 ("the Act").

The practical operation of the regime, however, has proved to be anything but simple.

Despite some twenty-five years of litigation to test the construction and operation of various versions of the "serious injury" regime and some eleven years of litigation to test the definition of the current "serious injury" regime (found in SEction 134AB of the Act), the Victorian Court of Appeal still finds itself answering fundamental questions about the definition and how it should be applied.

In the case I have been speaking about above, John Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179, the Victorian Court of Appeal found itself answering the following fundamental question about what they refer to as the "troublesome" Section 134AB of the Act:

"Is an injured worker confined, in a claim for damages at common law, to the specific injury or specific injuries which are found to constitute a "serious injury" within the meaning of the Act, or is the "serious injury" regime a gateway to a claim for damages at common law for the totality of the injury or injuries suffered out of or in the course of employment?"

If it is not already apparent, I will tease it out even further. But keep your eyes peeled for the term "gateway". It is important.

Could you please open the gate (way)?

It becomes obvious by way of example that it is the latter "gateway" construction of the "serious injury" regime that is preferable from the injured worker's point of view.

Let's go into the example in more detail.

  • A worker injures his or her left shoulder out of or in the course of his or her employment and subsequently undergoes surgery to treat that injury.
  • The worker then develops symptoms and suffers significant pain in his or her neck, left arm, wrist and hand. The symptoms and pain are found to have been caused by his or her left shoulder injury.
  • As a result of his or her pain and restrictions, the worker is then beset by anxiety and depression.
  • The injured worker lodges a "serious injury" application and is successful in that application. It is determined that the consequences of the physical injury of his or her left shoulder do meet the definition of "serious injury" within the meaning of the Act. In other words, the worker is granted a "serious injury" certificate to cover the physical injury to his or her left shoulder only.

Let's then re-phrase the question recently faced by the Victorian Court of Appeal in order to apply our example:

  • Is the injured worker restricted in his or her claim for damages at common law to the specific physical injury to his or her left shoulder for which he or she was granted a "serious injury" certificate or does the certificate also give him or her a "gateway" to claim for damages at common law for all the injuries to the left shoulder, neck, left arm, wrist and hand, and for his or her anxiety and depression?

Phrased that way, it goes without saying that, from our injured worker's point of view, the latter "gateway" construction of the "serious injury" regime is preferable. Without a doubt, the injured worker will be looking to claim for damages for the totality of the pain and restrictions he or she suffers as a result of the physical and psychological injuries which arose out of or in the course of his or her employment.

And... thankfully, in Georgoplous, the Victorian Court of Appeal agreed that the latter "gateway" construction of the "serious injury" regime is preferable.

The Victorian Court of Appeal held that, when the Act is read as a whole and the history of the Act is taken into consideration, it is clear that the latter "gateway" construction is the proper and indeed the only sensible construction of the "serious injury" regime.

In summary, the Victorian Court of Appeal held that the effect of the "serious injury" regime is that a worker who establishes that they suffer a "serious injury" within the meaning of the Act is entitled to bring a claim for damages at common law for the totality or for "all the components" of the injury or injuries which arose out of or in the course of employment, and is not confined in a claim for damages at common law to the specific injury or specific injuries found to constitute a "serious injury" within the meaning of the Act.

The gate(way) is finally open, WorkCover.

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