Supreme Court of Victoria’s Court of Appeal upholds trial judge’s finding that worker suffered two discrete injuries, did not suffer a ‘serious injury’ – Shah v Victorian Workcover Authority [2022] VSCA 95

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By Nieva Connell, Partner, Holly White, Lawyer, and Zoe Vlahogiannis, Law Graduate

Mr Shah, the applicant, allegedly injured his cervical spine and lower back in the course of his employment and sought to bring a claim with respect to damages. To obtain leave, he needed to establish that he had suffered a ‘serious injury’ pursuant to section 134AB(37) of the Accident Compensation Act 1985 (the Act). The Act applies to injuries arising in employment between 20 October 1999 and 1 July 2014. The equivalent requirement under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) is in section 327.

The applicant relied on two incidents where he suffered injury: a neck injury in September 2011 and a lower back injury in December 2011.

The trial judge held:

  1. The applicant had suffered two discrete injuries.
  2. The neck injury was not as a result of the workplace incident in September 2011.
  3. The two injuries could not be combined and as such the level of impairment was not considered on an aggregated basis. It was found that the level of pain and suffering for both injuries could not be described as ‘more than significant or marked’ when compared with other cases in the range of possible impairments.
  4. The applicant had the ability and capacity to return to work.

The Appeal

The applicant unsuccessfully appealed on three grounds.

Ground 1: The trial judge erred in failing to consider the whole evidence to determine whether the applicant suffered one injury or two discrete injuries

The applicant submitted that from the outset, the trial judge had accepted there were two discrete injuries and this approach prevented the judge from considering the whole evidence including the nature of his employment duties. 

The Court of Appeal stated that there was no basis to find that the trial judge ignored, misunderstood or understated the nature of the applicant’s employment duties. Further, the conclusion that the injuries where a result from two discrete events was established after consideration of all the evidence and as such no error was made. The Court of Appeal rejected the first ground.

Ground 2: the trial judge failed to give sufficient or adequate reasons for his decision that the injuries did not meet the pain and suffering threshold

The Court of Appeal stated that as the injuries were two discrete injuries it was impermissible to combine or aggerate the injuries and that the trial judge adequately assessed the impact of each separately. It was found that the trial judge’s reasoning was sufficient and the conclusion reached by the judge was well open to him. The Court of Appeal reached the same conclusion in relation to the pain and suffering consequences of each injury. The Court of Appeal rejected the second ground.

Ground 3: the trial judge erred in failing to consider the whole of the evidence to determine whether the applicant had permanent loss of earning capacity of 40 per cent or more as required by the Act

The Court of Appeal stated that as the trial judge found that the applicant’s earning capacity for each of the two injuries were not more than significant of market, and as being at the least very considerable, the applicant failed to meet the first threshold under section 134AB of the Act. The trial judge was therefore not required to go on to consider the empirical 40% test in section 134AB(38)(e). The Court of Appeal rejected the third ground.

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