Jelenic v Western Health

"The Plaintiff sustained injury in the course of her employment with the Defendant when she was required to repeatedly perform heavy manual handling work as a cleaner using heavy buffing and cleaning equipment amongst other duties and further on 17 August 2018 (scil 2019) when a chair moved away from her due to the condition of the vinyl floor surface upon which the chair was situate causing the Plaintiff to fall heavily to the ground striking the left side of her body and in particular her back, neck and left shoulder ('the injuries')."

5. The VWA rejected the serious injury application on 29 June 2023, following which the plaintiff issued an Originating Motion in the County Court on 11 July 2023. [1] The prayer for relief sought in the Originating Motion was:

"For an order that the Plaintiff have leave pursuant to Section 335 on (scil of) the Workplace Injury Rehabilitation and Compensation Act 2013 to bring proceedings to recover damages in respect of injuries suffered during the course of her employment, with a particular incident, on the 17th August 2019."

6. Following a referral by his Honour Judge Clark to the Medical Panel on 6 December 2024, the Panel's Certificate of Opinion and Reasons were produced on 15 April 2025. Neither party sought to challenge these Opinions and Reasons by way of judicial review.
7. After consideration of the Medical Panel's findings and following an exchange of 'without prejudice' correspondence between the parties, the VWA issued a serious injury certificate dated 19 May 2025 to the plaintiff. The certificate reads:

"In respect of the application under section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 dated 3 March 2023 made by Georgija Jelenic, the WorkSafe Victoria certifies that:

(a) the aggravation of the worker's degenerative spinal disease suffered on 17 August 2019 and the worker's left shoulder dysfunction following soft tissue injury of the left shoulder suffered on 17 August 2019 is a serious injury, and in respect of that injury as suffered on 17 August 2019 only;

(b) consent is hereby given to the bringing of proceedings for pain and suffering and pecuniary loss, subject to compliance with section 333."

1. Following receipt of consent orders from the parties, her Honour Judge Sanger made orders dismissing the proceedings on 27 May 2025.
2. Then, after the parties participated in the pre-issue phase and the matter remained unresolved, the plaintiff filed a Writ and Statement of Claim in the County Court on 20 August 2025.
3. The Statement of Claim, at paragraph 3, pleads:

"The plaintiff sustained injury in the course of her employment with the defendant when she was required to repeatedly perform heavy manual handling work as a cleaner using heavy buffing and cleaning equipment amongst other duties and further on 17 August 2019 when a chair moved away from her due to the condition of the vinyl floor surface upon which the chair was situate causing the plaintiff to fall heavily to the ground striking the left side of her body and in particular her back, neck and left shoulder ('the injuries')."

4. In subsequent correspondence between the parties, the defendant raised their concerns as to the allegedly broadened pleadings in the Statement of Claim. Notwithstanding that the plaintiff's solicitor, in correspondence to the defendant's solicitors on 5 September 2025, acknowledged that the serious injury certificate was granted in respect of the 17 August 2019 incident only, the plaintiff now seeks to persist with the pleadings contained in the Statement of Claim.

1. In the present application before me, the defendant submits that parts of paragraphs 3, 4, 5 and 8 of the plaintiff's Statement of Claim should be struck out on the basis that the serious injury certificate was granted for a discrete incident on 17 August 2019, and not for a "throughout the course of employment" claim, as sought by the plaintiff.
2. The defendant claims that the Statement of Claim impermissibly refers to an injury that has not passed through the relevant serious injury gateway, and that as such, those offending parts should be struck out pursuant to rule 23.02 of the County Court Civil Procedure Rules 2018 as they are scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trial of the proceeding, and are otherwise an abuse of process of the Court.
3. On the other hand, the plaintiff claims that at the serious injury stage, the circumstances giving rise to the injury were only relevant in determining that the injury was compensable and arose out of employment occurring on or after 20 October 1999. It is argued that the plaintiff has established such a compensable injury and that such an injury was a "serious injury". The plaintiff contends that in respect of the common law claim, she is entitled to rely upon the circumstances of her employment which are related to the serious injury, being the injury to the spine and left shoulder, and that she is not limited to only recovering damages for the injury identified as a "serious injury".

1. It is well understood that the underlying aim of the County Court Civil Procedure Rules 2018 is to ensure that there is a fair trial between the parties.
2. Further, the Court of Appeal in Northern Health and Kuipers,[2] made clear that at an interlocutory hearing, I have an obligation to seek to give effect to the overall purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.
3. In deciding this application before me, I have, as the authorities require of me, exercised a balancing act between the competing interests of each party; considered any prejudice flowing to either party, and taken into account the Court's obligations under the Civil Procedure Act 2010 (Vic).
4. The issue of the scope of the grant of serious injury was considered at length by his Honour J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[3] In my view, it remains the leading authority on this issue. Indeed, in their respective written and oral submissions, the parties took me to relevant paragraphs within that judgment to assist me in my consideration of the application.
5. In addressing the issue that I find is squarely on point with the present case, his Honour held:[4]

"... what is clear is that the worker's proceeding can only be maintained in respect of the employment duties or tasks that have given rise to the serious injury as the section makes clear. So a claim based upon a discrete injury on a different date to that on which the serious injury was sustained, albeit that it was incurred in the course of employment could not be maintained - nor could an allegation of negligence or statutory breach of statutory duty in respect of work not connected with the infliction of the serious injury."

6. Further, as ruled by her Honour Judge Tsikaris in Taylor v Savior-Faire Interior Linings Pty Ltd (Ruling):[5]

"... the plaintiff can only rely on those circumstances of his employment which are related to the serious injury grant ... ."

7. In the present case, the plaintiff referred to the duties undertaken in the course of her employment in her serious injury affidavit and pleaded such duties in the draft statement of claim which accompanied her serious injury application. However, although I am not privy to the without prejudice communications between the solicitors acting on behalf of the respective parties, I find that the VWA's 19 May 2025 serious injury certification was intentionally confined to the 17 August 2019 incident, to the exclusion of any injuries alleged to have been sustained during the course of the plaintiff's employment. This is particularly evident by the specific reference to the word "only" contained in the serious injury certificate. Further, I find that the decision to subsequently sign minutes of consent orders dismissing the Originating Motion proceedings was a considered and deliberate decision made by a competent and experienced firm of solicitors acting on behalf of the plaintiff. Such a belief is confirmed by the plaintiff's solicitor in correspondence to the defendant's solicitors on 5 September 2025 in which it is acknowledged that the serious injury certificate was granted in respect of the 17 August 2019 injury only.
8. As such, where in the present case the serious injury certificate was granted for an aggravation of the plaintiff's degenerative spinal disease on 17 August 2019 and the plaintiff's left shoulder dysfunction following soft-tissue injury of the left shoulder suffered on 17 August 2019, and in respect of that injury as suffered on 17 August 2019 only, it is, in my view, impermissible for the plaintiff to now seek to extend the breadth of her claim to a "throughout the course of employment claim".
9. I therefore uphold the defendant's Summons application to strike out and/or amend parts of paragraphs 3, 4, 5 and 8 of the plaintiff's Statement of Claim, filed with the Court on 20 August 2025, and make the following Orders:

(1) Pursuant to r23.02(b) and (d) of the County Court Civil Procedure Rules 2018, parts of paragraphs 3, 4, 5 and 8 of the plaintiff's Writ and Statement of Claim dated 20 August 2025 be amended in the following terms:

(a) paragraph 3 to refer only to the circumstances relevant to the injuries suffered by the plaintiff on 17 August 2019, and to the exclusion of circumstances "over the course of employment";

(b) paragraph 4 (which is reflected in the particulars appended to paragraph 6) and paragraph 5 to refer only to particulars of negligence and/or breach of regulation(s) which concern injuries suffered by the plaintiff on 17 August 2019, and to the exclusion of particulars that concern the plaintiff's "course of employment"; and

(c) paragraph 8 to reflect particulars of injury that occurred in compensable circumstances on 17 August 2019 only.

[1] County Court proceeding number CI-23-03655

[2] [2015] VSCA 172

[3] [2010] VSC 260

[4] Ibid at paragraph [48] (footnote omitted)

[5] [2025] VCC 51 at paragraph [48]