Call 1300 366 441 for a free first appointment. Ask about our No Win, No Fee OR Expenses* policy.

Court Decisions Clarify Dual Schemes for Common Law Damages in Victoria

We recently had a complex legal matter which we handling on behalf of a client concerning the issue of pursuing common law damages for workplace injuries sustained in transport accidents. The overlap of WorkCover and TAC jurisdiction presented unique challenges, and ultimately was taken all the way to the High Court.


Between 2005 and 2015, our client was employed as a train driver by Metro Trains Melbourne. During his tenure, he suffered a psychiatric injury due to a series of traumatic incidents. In response to his injuries, the plaintiff initiated two separate proceedings in the County Court:

  1. Seeking leave under s 93(4)(d) of the Transport Accident Act 1986 (TAA) to pursue common law damages for the transport accident on 17 November 2014 (referred to as the TAC proceeding).
  2. Seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (ACA) to pursue common law damages for psychiatric injuries sustained over the course of his employment (referred to as the WorkCover proceeding).

Legal Issues and Trial Decisions

In both cases, the plaintiff sought permission to commence common law proceedings for his injuries. In the TAC proceeding, the plaintiff argued that the transport accident constituted the basis for his claim under the TAA. Similarly, in the WorkCover proceeding, he asserted that his injuries were due to a number of industrial accidents covered by s 134AB of the ACA.

Judge Davis granted the plaintiff’s applications in both proceedings on 25 January 2023. However, the Victorian WorkCover Authority (VWA) appealed against the decision regarding the WorkCover proceeding, arguing that the injuries fell under the TAA, not the ACA.

Appeal Decisions

The Court of Appeal considered both cases together and addressed the key question: whether a worker can make separate claims under different statutory schemes for injuries sustained in transport accidents during employment.

The Court ruled in favour of the VWA, stating that the plaintiff’s injuries from the traumatic incidents were transport accidents within the meaning of the TAA. As such, the gateway to accessing common law damages for such injuries is provided solely by the TAA.

Furthermore, the Court clarified that while the ACA allows for claims regarding gradual process injuries not resulting from transport accidents, the plaintiff’s situation fell under the jurisdiction of the TAA. Thus, any serious injury application must be made in accordance with the provisions of the TAA.


We disagree strongly with the outcome found in the WorkCover case on a number of fronts. The counterarguments between the TAC and WorkCover cases identified that both parties should be held accountable, yet the ruling identified it could only be one or the other.

There were challenges presented due to the injury being psychiatric in nature, and therefore treated differently, along with the plaintiff’s role as a train driver. The ruling essentially states that when considering workplace accidents that fall under jurisdiction of the TAA, they can’t be aggregated, meaning that you can only make a claim against individual accidents, not considering the cumulative effect of multiple incidents. In our eyes, this is wrong.

As mentioned, we did take this case to the High Court; however, we were refused special leave. You can’t automatically take a case to the High Court, instead, you are required to seek special permission. The court held that our case would not enjoy sufficient prospects of success, as it did not raise any question of law of sufficient general importance to warrant a grant of special appeal. We strongly disagree with this position and we’re disappointed on behalf of our client and for other individuals in similar positions. The limiting of responsibility to a single incident in this situation is unreasonable and short-sighted. We hope that future cases are able to be reconsidered.

For more information, please get in touch with us on 03 9238 7878.