We refer back to our previous post “Workcover compensations cases from the courts “, legal case 10: G v Silaforts Painting Pty Ltd & Ors  VSCA 179 (8 August 2012) which merits full coverage. In this Victorian case, the Supreme Court of Victoria, Court of Appeal (the VCA) has ruled that injured workers bringing a common law damages claim under s 134AB of the Accident Compensation Act 1985 (the AC Act) are entitled to claim for the totality of their injuries and not solely for specific injuries deemed “serious” in their own right.
Case 10: Common Law Damages for physical and psychological injuries can be pursued
The Victorian Court of Appeal (VA) found that under the Vic Accident Compensation Act 1985, a worker can pursue common law damages for both his psychological and physical injuries:
‘… it was Parliament’s intention, when drafting s134AB of the Act, that “the relevant concept of injury was to be understood in a broad common sense way”.’
Read the full text of the legal case here – G v Silaforts Painting Pty Ltd & Ors  VSCA 179 (8 August 2012)
Injured workers entitled to claim for the totality of their injuries – Victorian Court of Appeal
The Supreme Court of Victoria, Court of Appeal (the VCA) has ruled that injured workers bringing a common law damages claim under s 134AB of the Accident Compensation Act 1985 (the AC Act VIC) ) are entitled to claim for the totality of their injuries and not solely for specific injuries deemed “serious” in their own right.
The decision came after the VCA heard the case of a painter (the injured worker) who had fallen from scaffolding while working on a building site in 2006, injuring his spine and his left foot.
In 2008, he had lodged a serious injury application for his physical injuries but they were deemed by WorkCover not to be serious.
In 2009, he served a second serious injury application on WorkCover, citing the same physical injuries. This time he also cited psychological injuries which had arisen from the consequences of the same accident, including anxiety, depression and stress. But WorkCover rejected this claim too.
The injured worker sought leave to commence proceedings in relation to both his physical and psychological injuries in the Supreme Court of Victoria (the VSC).
The VSC ( Vic Supreme Court) found that the injured worker’s psychological injuries were “serious” for the purposes of s 134AB but that his physical injuries were not. Accordingly, it allowed the injured worker to bring a common law claim only in relation to the psychological injuries he had suffered.
The injured worker then appealed this finding in the VCA, arguing that his injuries should be considered as a whole. The VCA upheld the injured worker’s appeal and granted him leave to pursue a common law claim in respect of all his injuries.
In doing so, the VCA noted that s 134AB could not be read in isolation but needed to be interpreted in light of its relationship with s 82 (which permits a worker compensation for an injury that has arisen out of employment) and s 5 (which defines injury broadly to include any “physical or mental injury”. When read in this broad way, a worker is entitled to recover damages in respect of all the components of a workplace injury if that injury has resulted in consequential impairment that is severe enough to be considered serious for the purposes of the Act.
The VCA observed that this construction makes the terms of s 134AB and its consequential provisions a harmonious scheme. If it were to be read differently — so that each component of a compensable injury needs in itself to be serious in order to be the subject of a common law claim — then certain other provisions of s 134AB would be problematic. It would also require medical diagnostic differentiation between the individual components of an injury.
Finally, the VCA concluded that this approach was also supported by the legislative history of s 134AB; in particular, the provisions are designed to restore the rights of injured workers so long as one or other of the serious injury “gateways” is satisfied.
[Post dictated by WCV and manually inserted on behalf of WCV]
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