Transport Accident, Industrial Accident – which serious injury provisions apply? Metro Trains Melbourne Pty Ltd v Graeme Allan Keay [2023] VSCA 223

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By Stuart Eustice, Partner, Holly White, Associate and Emily McDougall, Law Graduate

Factual Background

Between 2005 and April 2015, the plaintiff, was employed by Metro Trains Melbourne Pty Ltd as a train driver. He sustained a psychiatric injury as a result of being involved in a series of traumatic incidents during the course of his employment.

The plaintiff commenced two proceedings in the County Court seeking leave to commence common law proceedings, being:

  1. Leave to commence proceedings for the recovery of common law damages in respect of a psychiatric injury suffered as a result of a transport accident on 17 November 2014 pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) (‘the TAA’) (‘the TAC proceeding’); and
  2. Leave to commence a proceeding for the recovery of common law damages in respect of the psychiatric injuries he had sustained over the course of his employment, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the ACA’) (“the VWA proceeding”).

On 25 January 2023, Judge Davis granted the plaintiff’s application in each proceeding.

Legal Issue

The defendant (the VWA) appealed against the orders made by Judge Davis in the VWA proceeding, contending her Honour erred in concluding that it was an industrial accident to which s 134AB of the ACA applied.

Appeal Decision

The Court of Appeal agreed, stating that ‘as a result of a transport accident’, the ‘gateway’ to accessing common law damages is to be found solely in s 93(4) of the TAA and that there is no dispute that each of the fatalities and near miss incidents that occurred while the plaintiff was driving a train constituted a transport accident within the meaning of the TAA.

Section 93 of the TAA does not permit a person to aggregate injuries over multiple transport accidents, or to make a claim for a ‘gradual process injury’ caused by multiple transport accidents, unlike the undoubted ability of a worker to make a serious injury application in respect of a gradual process injury which did not result from any transport accident, pursuant to s 134AB(16)(b) of the ACA.

In those circumstances, the plaintiff is required to make any serious injury application in accordance with the provisions of the TAA. The Appeal was allowed.

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