Court rules on "troublesome" provision in injured worker's appeal

In "yet another appeal" concerning a "troublesome" section of the Victorian Accident Compensation Act 1985, the Court of Appeal has found a worker can pursue common law damages for both his psychological and physical injuries.

Justices Robert Osborn, Jack Forrest and David Beach said they believed it was Parliament's intention, when drafting s134AB of the Act, that "the relevant concept of injury was to be understood in a broad commonsense way".

They said such provisions "were designed to restore the rights of injured workers, provided that one or other of the serious injury gateways was satisfied".

In 2006, the Silaforts Painting Pty Ltd painter fell from a scaffold while conducting duties and sustained injuries to his cervical and lumbar spine and his left foot.

He lodged a "serious injury application" in 2008, but the Victorian Workcover Authority (VWA) found his physical injuries were not "serious" within the meaning of s134AB(37), which required a degree of impairment of 30 per cent or more.

The worker lodged another serious injury claim in September 2009 for his physical injuries as well as a severe psychological injury that arose from his condition.

In February 2012 Supreme Court proceedings, Justice Stephen Kaye found the worker could bring a common law claim for damages for his psychiatric and psychological injuries, but not his physical injuries.

The worker appealed.

In the proceedings at hand, Justices Osborn, Forrest and Beach described s134AB as "troublesome", and said the appeal raised "a fundamental question" on the operation of the Act:

"Is a worker confined, in a claim for damages at common law in respect of a workplace injury, to a specific injury or injuries certified by the [VWA] to be a serious injury, or are the serious injury provisions simply a gateway to a claim for damages for the total injury suffered in compensable circumstances?" (emphasis added by OHS Alert).

"In our view, the effect of s134AB(1) and (2) of the Act is that a worker may recover damages in respect of all the components of an injury… if the compensable injury results in consequential impairment of the kind defined as serious injury," Justices Osborn, Forrest and Beach said.

"There are a series of provisions in [the section] which are problematic if s134AB(2) is understood to require that each component of a compensable injury… must itself constitute a serious injury."

They found that it is not the "character of the injury itself which determines whether it is a serious injury but its consequences".

"The definition of serious injury does not describe categories of injury but categories of harm consequential upon injury," they said, in allowing the worker's appeal.

Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179 (8 August 2012)