Victorian Court of Appeal clarifies the meaning of ‘an injury’ in respect of a further serious injury application: Museums Victoria v Susnjara [2021] VSCA 166

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By Holly White, Lawyer and Justine Sammut, Paralegal

In Museums Victoria v Susnjara [2021] VSCA 166, the Victorian Supreme Court, Court of Appeal considered the meaning of ‘an injury’ in section 134AB(21) of the Accident Compensation Act 1985 (Vic) (the Act). Section 134AB(21) prohibits a worker who has made an application under s134AB(4) in respect of ‘an injury’ from making a further application in respect of ‘that injury’.

The Act applies to injuries arising in employment between 20 October 1999 and 1 July 2014. The equivalent prohibition under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) is in section 338, in respect of an application under section 328(2).

The Court of Appeal confirmed that the meaning of ‘an injury’ extends to the whole injury sustained in the compensable circumstances, rather than the injury as described in the first application. However, whether a further application is valid is fact specific and must involve detailed analysis of the precise terms, and underlying basis, of each claim.

When considering a serious injury application, defendants should determine whether a worker has made any prior applications relating to the same compensable circumstance.

Facts

Mr Susnjara was employed by Museums Victoria as a painter between 1992 and 2012. In October 2015, Mr Susnjara lodged an application under section 134AB(4) claiming injury to his hands and upper limbs caused by repetitive work processes. The Victorian WorkCover Authority (VWA) was not satisfied that he had suffered a serious injury within the meaning of the Act and declined to issue him a serious injury certificate. Within the 30 day time limit, Mr Susnjara sought leave of the County Court of Victoria to commence common law proceedings. The proceedings were dismissed in February 2016.

In October 2018 Mr Susnjara lodged a second application under s134AB(4) claiming injury to his shoulders during the same period of employment. Again, the VWA was not satisfied that he had suffered a serious injury and declined to issue him a serious injury certificate. Again, within the 30-day time limit, Mr Susnjara sought leave of the County Court of Victoria to commence common law proceedings.

Issue

Museums Victoria argued that Mr Susnjara’s second application was precluded by operation of section 134AB(21) because it prohibited him from making a further application in respect of the same injury.

The parties disputed the meaning of ‘an injury’ under section 134AB(21):

  1. Museums Victoria argued ‘an injury’ referred to the ‘compensable injury in the sense of the total injury suffered in the relevant compensable circumstances’[1] and Mr Susnjara’s two applications were in respect of different components of the same injury;
  2. Mr Susnjara argued ‘an injury’ referred to the injury or injuries on which the worker relied in his application under section 134AB(4).

At first instance, Judge Bowman ruled in favour of Mr Susnjara and finding that he was entitled to make a second application based upon injuries to his shoulders suffered as a result of the same work processes.[2]

The same question was considered on appeal, with the Court of Appeal finding in favour of Museums Victoria. In so doing the Court of Appeal affirmed the decision in Georgopoulos v Silaforts Painting Pty Ltd,[3] finding that ‘an injury’ under section 134AB(21) encompasses all of the injuries sustained by a worker in the same compensable circumstances.

[1] Citing Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 [7].

[2] Museums Victoria v Susnjara [2021] VSCA 166 at [37].

[3] [2012] VSCA 179.

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