Museums Victoria v Susnjara [2021] VSCA 166

1 A worker who suffers injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014, and who wishes to recover damages at common law in relation to that injury must comply with the serious injury provisions in s 134AB of the Accident Compensation Act 1985 ('the Act').

2 Section 134AB(3) prohibits a worker from bringing proceedings in accordance with s 134AB unless the worker has made an application under sub-s (4) to the Victorian WorkCover Authority ('the Authority').[1] It is only if an application under sub-s (4) is rejected that the worker may bring an application under s 134AB(16)(b) of the Act to commence common law proceedings.

3 Section 134AB(21) prohibits the making of second and subsequent applications under sub-s (4) in respect of 'an injury'. In terms, sub-s (21) provides:

If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.

4 Between August 1992 and November 2012, Pavo Susnjara was employed by Museums Victoria as a painter. In October 2015, he made an application under s 134AB(4) ('the first sub-s (4) application') in respect of injuries he claimed were caused by his employment with Museums Victoria. In the first sub-s (4) application, Mr Susnjara relied upon an injury to his hands (and a consequential psychological injury), which he said was caused by the repetitive nature of his work. The body functions referred to in the first sub-s (4) application were those of his hands and upper limbs.

5 In February 2016, the Authority advised Mr Susnjara that it was not satisfied that he had suffered a 'serious injury' and that it would therefore not issue him with a certificate under s 134AB(16)(a).

6 In March 2016, within the 30 day time limit specified in s 134AB(16)(b), Mr Susnjara filed an originating motion in the County Court seeking leave pursuant to that section to commence common law proceedings. The trial of that proceeding was subsequently heard by Judge K Bourke. On 9 March 2017, her Honour dismissed the proceeding.[2]

7 On 26 October 2018, Mr Susnjara made a second application to the Authority under s 134AB(4) ('the second sub-s (4) application'). In the second sub-s (4) application, the injuries relied upon by Mr Susnjara were to his right and left shoulders.

8 On 16 May 2019, the Authority again advised Mr Susnjara that it was not satisfied that he had suffered a serious injury and that it would therefore not issue him with a certificate under s 134AB(16)(a). On 12 June 2019, Mr Susnjara filed a second originating motion in the County Court, seeking leave pursuant to s 134AB(16)(b) to commence common law proceedings.

9 The issue between the parties at first instance, and in this Court, concerns the proper construction and application of s 134AB(21). Museums Victoria contends that s 134AB(21) precludes Mr Susnjara from making the second sub-s (4) application, and that Mr Susnjara cannot commence an application under sub-s (16)(b) in reliance upon the first sub-s (4) application because he is a number of years outside the 30 day time limit provided for in sub-s (16)(b).

10 The primary judge (Judge Bowman) rejected Museum Victoria's contentions, holding that s 134AB(21) did not prevent Mr Susnjara from making the second sub-s (4) application. The issue in dispute between the parties involves the construction of the expression 'an injury' in sub-s (21), and the application of that subsection to the facts of this case.

The first sub-s (4) application in more detail

11 The first sub-s (4) application was, as required by s 134AB(5) of the Act, in a form approved by the Authority. It was accompanied by a statement of claim ('the first statement of claim'); an affidavit sworn by Mr Susnjara on 22 October 2015; an affidavit sworn by Mr Susnjara's solicitor, Leslie Christie, on 22 October 2015; and various medical reports and tax returns.

12 In the first sub-s (4) application, Mr Susnjara was required to specify, as to each cause of action, 'the injury or injuries relied upon'. The response given was:

Bilateral carpal tunnel syndrome requiring decompression;

Production, aggravation, acceleration and/or exacerbation of osteoarthritic changes in of [sic] both hands;

Consequential psychological injury.

13 In his application, Mr Susnjara identified both para (a) of the definition of 'serious injury' ('permanent serious impairment or loss of a body function') and para (c) of the definition ('permanent severe mental or permanent severe behavioural disturbance or disorder') as being relied upon by him. The body function or functions alleged to have been impaired on which reliance was placed were identified as:

Permanent serious impairment to the right hand/upper limb and/or left hand/upper limb.

14 In his affidavit in support of the first sub-s (4) application, Mr Susnjara said that he worked for Museums Victoria for some 20 years as a painter at various sites. He said that it was 'very repetitive'; the areas he had to work in 'were often huge, with gallery walls up to 4 metres high'; he was 'overloaded with work'; and he had to work 'long hours in order to catch up' with the various tasks that were allocated to him. He said that as a result of the repetitive nature of his work, he began suffering symptoms in both hands, leading him to consult his doctor in April 2011 with pins and needles in both hands.

15 Mr Susnjara deposed that he underwent a nerve conduction study which revealed he was suffering from bilateral carpal tunnel syndrome. Later, an MRI was arranged to exclude the possibility of his symptoms emanating from his neck. After the MRI was performed, Mr Susnjara was told that the symptoms in his hands were mainly related to carpal tunnel syndrome. Mr Susnjara described an improvement in his symptoms after he was given modified duties and was not required to use his hands 'excessively at work'. On a return to normal duties, however, Mr Susnjara's symptoms 'returned just as bad as before'. Ultimately, Mr Susnjara was made redundant in November 2012.

16 In the first statement of claim, Mr Susnjara pleaded that:

Throughout the course of his employment with [Museums Victoria] [Mr Susnjara] was required to perform work as a painter which was repetitive, heavy and awkward and as a result of which excessive strain and pressure was placed on his upper limbs and hands ('the duties').

17 Mr Susnjara then pleaded that as a result of the duties, he suffered injury, loss and damage. The injuries pleaded were:

Bilateral carpal tunnel syndrome requiring decompression;

Production, aggravation, acceleration and/or exacerbation of osteoarthritic changes in of [sic] both hands.

Consequential psychological injury.

18 Mr Susnjara then pleaded that these injuries were caused by the negligence of Museums Victoria. His particulars of negligence included allegations of failing to provide a safe system of work; failing to provide a safe place in which to work; failing to provide him with proper assistance; failing to properly train, instruct and supervise him; failing to provide him with safe equipment; requiring him to perform the duties without any or any adequate rest break, and without any or any adequate rotation of duties; failing to give him any or any adequate warning; failing to heed his complaints; and failing to have him participate in any or any adequate risk assessment.

19 As we have already said, the Authority refused the first sub-s (4) application. At the trial of the subsequent s 134AB(16)(b) application, Mr Susnjara relied upon the affidavits which accompanied the first sub-s (4) application, a further affidavit sworn by him on 17 February 2017 and a further affidavit sworn by his solicitor, Mr Christie, on 16 February 2017.

20 Ultimately, Mr Susnjara's application for leave to commence a common law proceeding was rejected because Judge Bourke was not satisfied that Mr Susnjara's work duties were a cause of his bilateral carpal tunnel syndrome,[3] and she was not satisfied that, in any event, any impairment resulting from the bilateral carpal tunnel syndrome was serious within the meaning of the Act.[4]

The second sub-s (4) application in more detail

21 The second sub-s (4) application was, like the first sub-s (4) application, made in the form approved by the Authority.[5] As with the first sub-s (4) application, it too was accompanied by a statement of claim ('the second statement of claim'). The second sub-s (4) application was also accompanied by a very brief affidavit sworn by Mr Susnjara, on 26 October 2018, in which Mr Susnjara deposed to an arrangement having been made for him to meet with counsel for the purpose of drafting a more detailed affidavit to be 'sworn shortly and provided immediately thereafter to the defendant's solicitors'. This affidavit was otherwise devoid of relevant content.

22 In the form which provided for the making of the second sub-s (4) application, Mr Susnjara was again required to specify, as to each cause of action, 'the injury or injuries relied upon'. The response he gave on this occasion was:

(a) Right shoulder.

(b) Left shoulder.

23 In the second sub-s (4) application, Mr Susnjara identified only para (a) of the definition of 'serious injury' ('permanent serious impairment or loss of body function') as being relied upon by him. In answer to that part of the form asking him to identify the body function or functions, Mr Susnjara referred back to the description he gave of the injuries he relied upon (namely, the right shoulder and the left shoulder).

24 On 3 April 2019, Mr Susnjara swore a substantive affidavit in support of the second sub-s (4) application. In this affidavit, he referred to his 'previous claim for bilateral carpal tunnel syndrome to do with [his] work as a painter for [Museums Victoria]'. He referred to surgery he had on his left wrist in 2018, saying that following this surgery his carpal tunnel syndrome had 'improved substantially'.

25 In this affidavit, Mr Susnjara also said that for the purpose of the second sub-s (4) application he 'rel[ied] on injuries to [his] right shoulder and/or left shoulder and/or bilateral shoulders'. As to his work and the circumstances in which he sustained injury, Mr Susnjara said:

The areas where I had to paint were usually very large and required a lot of overhead work. I am right-handed so I would be painting with my right hand and holding the tin with my left hand. When using rollers I would usually use both hands. The work was repetitive in a sense that other than taking my breaks, I was mainly painting the whole working day.

...

I started to experience discomfort in my right shoulder for a few years prior to ceasing my work for [Museums Victoria]. As I continued working the discomfort got worse and progressed into a painful right shoulder. I had pain especially when doing my overhead painting work. Sometime after my right shoulder pain started, I started to experience pain in the left shoulder, however the right shoulder pain was always worse.

26 In the same affidavit, Mr Susnjara deposed to having surgery on his left shoulder in January 2018, and surgery on his right shoulder in June 2018. He then said that he was made redundant in November 2012 at a time when he was 'struggling to work because of [his] carpal tunnel syndrome and the pain in [his] shoulders'.

27 In a subsequent affidavit, sworn 15 April 2020, Mr Susnjara said in relation to his earlier application under sub-s (16)(b):

In my court application in 2017, I thought I had to focus on my wrists and not talk about my shoulders.

28 In this affidavit, Mr Susnjara also said that he did not know if he would have surgery on his right wrist because he was not then (in April 2020) feeling any pain in his right wrist and he was 'mainly concerned to get [his] shoulders right'. He concluded this affidavit by saying that he could not do his old job now because of his shoulders.

29 In the second statement of claim, Mr Susnjara pleaded that:

Throughout the course of [his] employment, [Mr Susnjara] was required to perform repetitive painting work and overhead work, such work put unreasonable strain on [his] shoulders ('the work').

30 Mr Susnjara then pleaded that as a result of the work, he sustained 'serious personal injuries'. The injuries pleaded were injuries to the right and left shoulders; full thickness tears of the right and left supraspinatus tendons; bilateral biceps ruptures, tendonitis and deformity; an organically based chronic pain syndrome; and depression and anxiety.

31 Mr Susnjara then pleaded that these injuries were caused by the negligence of Museums Victoria. His particulars of negligence included many of the particulars pleaded in the first statement of claim. In addition to those particulars, however, Mr Susnjara made further allegations of negligence, including that he was required to perform work above head height for prolonged periods of time; was required to perform repetitive and arduous painting work; and was required to perform work which required awkward postures and strained use of his upper limbs.

32 As we have already said, after considering the second sub-s (4) application, the Authority advised Mr Susnjara that it was not satisfied that he had suffered a 'serious injury' within the meaning of s 134AB of the Act. Mr Susnjara then filed his second originating motion, again seeking leave pursuant to s 134AB(16)(b) to commence a common law proceeding.

33 A question then arose (raised by Museums Victoria) as to whether Mr Susnjara's second originating motion should be dismissed because the second sub-s (4) application was invalid due to the operation of s 134AB(21) - meaning that the current sub-s (16)(b) application was statute-barred, having been issued outside the 30 day time limit prescribed in s 134AB(16)(b). On 28 April 2020, Judge Carmody ordered that this question be fixed for hearing and determination as a separate question.[6]

34 On 11 June 2020, the trial of the separate question (described in the Court below as 'the preliminary question') came on for hearing before Judge Bowman. At the hearing, Museums Victoria submitted that:

(a) consistently with the Court of Appeal's decision in Georgopoulos v Silaforts Painting Pty Ltd,[7] the words 'an injury' in s 134AB(21) referred to the 'compensable injury in the sense of the total injury suffered in the relevant compensable circumstances';

(b) the two applications made by Mr Susnjara under s 134AB(4) were in respect of different components of the same total injury;

(c) the second sub-s (4) application was contrary to s 134AB(21) and therefore invalid; and

(d) Mr Susnjara's current application under s 134AB(16)(b) must be dismissed because, contrary to that provision, it had not been made within 30 days after his receipt of the Authority's advice that it would not grant a certificate in response to his first - and only valid - application under s 134AB(4) (the first sub-s (4) application).

35 In response, Mr Susnjara submitted to the contrary that:

(a) the words 'an injury' in s 134AB(21) referred to the injury or injuries on which a worker relied in his or her application under s 134AB(4);

(b) section 134AB(21) is intended to prevent a worker making multiple attempts to access the serious injury gateway for an injury or injuries for which a previous attempt has been made. The provision does not stop a worker from attempting to access the gateway by relying on a particular injury which has never been the subject of an application pursuant to s 134AB(4) and which has never been the subject of a determination by the Authority; and

(c) since Mr Susnjara had not made a previous application for injuries to his shoulders, the prohibition in s 134AB(21) is not engaged. He is therefore entitled to bring his current application pursuant to s 134AB(16)(b), because it was made within the time limit prescribed by s 134AB(16)(b) - being within 30 days of being advised by the Authority that the second sub-s (4) application had been refused.

36 On 31 July 2020, Judge Bowman delivered reasons for judgment in favour of Mr Susnjara.[8] His Honour held that:

(a) the words 'an injury' in s 134AB(21) referred to an injury on which the worker relied in his or her application under s 134AB(4); and

(b) for the purposes of s 134AB(21), the injury to Mr Susnjara's wrists and hands was the injury in respect of which the first sub-s (4) application had been made, and in respect of which Mr Susnjara was prevented from making a further application.[9]

37 The judge concluded his reasons for judgment by saying that Mr Susnjara, 'having been unsuccessful in relation to the application based upon the wrist injuries, is entitled to make a further application based upon the injuries to the shoulders suffered as a result of the same work processes'.[10]

38 On 4 August 2020, in conformity with his reasons delivered on 31 July 2020, the judge relevantly made the following order:

1. The Court declares that [Mr Susnjara's] application under s 134AB(4) of the Accident Compensation Act 1985 (Vic) dated 26 October 2018 was not invalid by reason of the operation of s 134AB(21) of that Act.

39 Museums Victoria now seeks leave to appeal, relying on a single proposed ground of appeal as follows:

1. The judge erred in construing the word 'injury' in s 134AB(21) of [the Act] so that it referred only to the specific medical conditions on which the worker relied in the application under s 134AB(4) rather than the total injury suffered by the worker in the relevant compensable circumstances.

40 The particular language used in Museums Victoria's proposed ground of appeal finds its genesis in this Court's decision in Georgopoulos.[11] Museums Victoria's arguments, both at first instance and in this Court, rely heavily on Georgopoulos. In the circumstances, it is necessary to describe that decision in some detail.

41 Mr Georgopoulos was employed by Silaforts Painting Pty Ltd. On 18 September 2006, in the course of his employment, he fell from a scaffold. He alleged that he suffered physical injuries to his spine and left foot; and psychological injuries arising from the consequences of his physical injuries.

42 The history of the various applications made in Georgopoulos is a complex one.[12] The central issue in the case, however, involved the question of whether a worker (Mr Georgopoulos) was confined, in a claim for damages at common law in respect of a workplace injury, to the specific injury or injuries certified by the Authority to be a serious injury, or are the serious injury provisions in s 134AB 'simply a gateway to a claim for damages for the total injury suffered in compensable circumstances?'.[13]

43 In Georgopoulos, the Authority granted a serious injury certificate to Mr Georgopoulos pursuant to s 134AB(16)(a)(ii), consenting to him bringing a common law proceeding for an injury suffered in the course of his employment and described as:

Psychological and/or psychiatric injuries, including but not limited to depression, anxiety and stress, arising from the consequence of the physical injuries (but not those physical injuries) ... alleged to have been sustained on or about 18 September 2006.

44 Shortly after this certificate was issued, the parties in Georgopoulos obtained a consent order in the County Court which purported to give Mr Georgopoulos leave to commence a proceeding:

[F]or the recovery of common law damages for pain and suffering and economic loss in respect of injuries (psychological and/or psychiatric injuries, including but not limited to depression, anxiety and stress) sustained on or about 18 September 2006.

45 Pursuant to the certificate granted, and leave given, Mr Georgopoulos issued a common law proceeding against his employer and two other defendants. In his statement of claim, in addition to psychological and psychiatric injuries, he pleaded that he had suffered a number of organic injuries. These included injuries to his left ankle, his cervical spine and his lumbar spine.

46 The specific issue in Georgopoulos was whether ss 134AB(1) and (2) permitted Mr Georgopoulos to claim common law damages in respect of injuries that had not been the subject of the s 134AB(16)(a)(ii) certificate nor the subsequent consent order which granted him leave to commence a proceeding in respect of psychological and/or psychiatric injuries.

47 Sections 134AB(1) and (2) relevantly provided:

(1) A worker who is ... entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 -

(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except -

...

(iii) ... as permitted by and in accordance with this section; and

(b) shall not, in proceedings in respect of the injury, recover any damages for pecuniary loss except -

...

(ii) ... as permitted by and in accordance with this section.

(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.

48 After referring to, and analysing, relevant provisions in the Act, including the definition of 'injury' in ss 5, 82(1), 98C(1) and 104B, and ss 134AB(1), (2), (3), (15), (22), (23) and (36), this Court concluded that the injury referred to in ss 134AB(1) and (2) was the 'compensable injury in the sense of the total injury suffered in the relevant compensable circumstances'.[14] The Court gave three reasons for reaching this conclusion:

First, s 134AB couples the notion of compensable injury, which arises out of s 82(1) of the Act, with the notion of consequential impairment, defined as serious injury by s 134AB(37) of the Act. A worker may recover damages in respect of 'an injury' which constitutes a compensable injury but the compensable injury must be a serious injury in that it must result in impairment sufficient to constitute serious injury as that concept is defined.

Secondly, this construction results in a harmonious scheme in terms of the associated and consequential provisions of s 134AB. Conversely, there are a series of provisions in s 134AB which are problematic if s 134AB(2) is understood to require that each component of a compensable injury in respect of which a worker may recover damages must itself constitute a serious injury.

Thirdly, the legislative history of the provisions supports the view that Parliament intended the construction we prefer.[15]

49 With reference to the second reason given by the Court in Georgopoulos,[16] the Court identified ss 134AB(15), (22), (23) and (36) as being the sections which were 'problematic' if the word 'injury' in those sections was limited to the serious injury relied upon for the purpose of an application under s 134AB(4), rather than being given the meaning that it is 'the compensable injury in the sense of the total injury suffered in the relevant compensable circumstances'.[17]

50 In relation to s 134AB(15), the Court said:

The reference to 'the injury' in s 134AB(15) must be one to the compensable injury as a whole because the procedure which is adopted by that sub-section for the purpose of deeming the injury to be a serious injury is one which is expressly directed to all of the injuries arising out of the same event or circumstances. The injury which is deemed to be a serious injury is thus the compensable injury. In turn this supports the view that the requirement contained in s 134AB(2) that 'the injury' be a serious injury is concerned with the compensable injury as a whole.

Section 104B of the Act to which sub-s (15) refers deals in the first instance with claims for compensation under s 98C.

Section 98C(1) provides:

(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.

Compensation under s 98C(1) is based upon a worker's impairment benefit rating which may be calculated based upon the worker's whole person impairment assessed in accordance with the AMA Guides as modified by s 91 or any relevant regulation.[18]

Section 104B relevantly provides:

...

(5) The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of -

(a) determining any entitlement of the worker to compensation under section 98C;

(b) determining the whole person impairment under sections 134AB(3) and 134AB(15);

(c) Subdivision 1 of Division 3A.

(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.

(5AA) A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.

...

(5B) A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.

(5C) If the independent examination has been requested by the Authority or a self-insurer under subsection (1C), the Authority or self-insurer must give the worker a written statement of the injury or injuries to be included in the assessments and a statement of rights in a form approved by the Authority for the purposes of this section.[19]

An assessment made for the purposes of s 98C (as contemplated by s 104B(5)(a)) is one of whole person impairment assessed in accordance with the AMA Guides as modified by s 91 or any relevant regulation. Likewise, s 104B(5)(b) refers expressly to 'determining the whole person impairment'[20] of a worker for the purposes of s 134AB(3) and 134AB(15).[21] The assessment of whole person impairment takes into account each of the injuries sustained by the worker in a relevant work accident or process. The Authority, or a medical panel, makes the determination of impairment.[22]

...

There is no apparent reason why 'the injury' should be understood to comprise the compensable injury (including all its components) where that phrase is used in s 134AB(15) but to constitute each identifiable component of a compensable injury constituting a serious injury where that phrase is used in s 134AB(1) and (2). The better view is that the term 'the injury' is intended to refer to the compensable injury in both contexts.[23]

51 In relation to s 134AB(22), the Court said:

Section 134AB(22) places a statutory ceiling on pecuniary loss damages and pain and suffering damages which a court may award in respect of 'an injury'.[24] If the first respondent's contention be accepted (requiring a worker to seek certification or leave in respect of separate serious injuries forming part of the compensable injury in order to bring a common law claim for damages) each injury determined to be serious would, accepting the logic of the first respondent's argument, be the subject of a separate ceiling.

The first respondent's construction also results in a further odd consequence which can be illustrated this way. If a single injury to the neck causes quadriplegia then, as we understand the first respondent's construction, such an injury would result in a single cap on damages for non-economic loss recoverable in a common law claim. The fact that it results in loss or impairment of more than one body function will not transform it into more than one injury.

If, however, a worker suffered burns resulting in the loss of the toes on each of his feet and the fingers on each of his hands, the first respondent's construction would both allow and require claims in respect of each foot and hand together with a claim for consequent disfigurement (if that be sufficiently serious) and psychiatric sequelae (if they be sufficiently serious). The worker would thus potentially recover up to six times the cap provided for in s 134AB(22). He or she would recover pecuniary loss damages in respect of each injury constituting a serious injury. It is difficult to accept that separate injuries resulting from a single compensable accident or process should result in so disproportionate an outcome to that available for a quadriplegic or other person suffering catastrophic consequences from a single injury. The damages available for a compensable injury in the sense we have used that term would vary widely dependent upon the extent to which it was constituted by separate serious injuries in the sense for which the first respondent contends.

...

Notwithstanding the use of the expression 'an injury' (singular) in s 134AB(22) and the prior requirement that 'the injury' be a 'serious injury', the better view is that the ceiling in s 134AB(22) relates to the compensable injury globally. This view is consistent with the view we take of the effect of ss 134AB(1) and (2). It is, however, inconsistent with the first respondent's construction of s 134AB(2). The construction we prefer provides an integrated scheme with respect to the compensable injury.[25]

52 In relation to s 134AB(23) the Court said:

Section 134AB(23) provides:

In the trial of a proceeding brought under this section, a jury must not be informed -

(a) of the monetary thresholds and statutory maximums specified by or under subsection (22); or

(b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury; or

(c) that the Authority or self-insurer has been satisfied that the injury is a serious injury; or

(d) that the Authority or self-insurer has issued a certificate under subsection (16)(a).

Support for the construction we prefer can be found in the High Court's treatment of s 134AB(23) in Maurice Blackburn v Brown. The Court said:

When read as a whole, sub-section (23) points strongly to the conclusion that the Act treats the steps taken under the Act before common law proceedings may be brought as wholly irrelevant to those common law proceedings. That is, the matters mentioned in sub-section (23) are not to be mentioned to the jury because they are irrelevant.

Apart from sub-sections (19)(c) [now repealed] and (23), nothing in the provisions of section 134AB with respect to the determination or deeming of the existence of a serious injury speaks in any way to the conduct of an action brought in accordance with section 134AB(2).

Acceptance of the first respondent's construction would give rise to the possibility of debate at trial as to whether particular injuries or aspects of injury come within the terms of the certificate issued by the Authority or the leave granted by a court. In some of these cases, there may be disputed questions of fact. How these could be resolved by a jury (in many cases the fact finding tribunal) in the face of s 134AB(23) is unclear. The construction we prefer separates the question of serious injury entirely from the subsequent common law claim in respect of the compensable injury.[26]

53 Finally, with respect to s 134AB(36), the Court said:

Furthermore, on the first respondent's construction a potential problem may arise in relation to the termination of payments pursuant to s 134AB(36) of the Act which occurs as a result of settlement or judgment. Section 134AB(36) provides:

(36) If judgment is obtained, or a compromise or settlement made in respect of proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable -

(a) where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or

(b) where pain and suffering damages are awarded, to make payments under section 98C or 98E in respect of the injury.

The sub-section refers to payments of compensation in respect of 'an injury'. The problem which arises is that payments of compensation by the Authority or self-insurer may well be payable in relation to components of an injury or injuries not determined to be 'a serious injury' and thus not the subject of a judgment or settlement. In those circumstances, if the logic of the first respondent's argument holds good, the liability to continue to make weekly payments or payments under s 98C or 98E would continue. On the first respondent's construction, the relevant 'proceedings' must be those involving a separately identifiable serious injury or serious injuries. Once again, we doubt that this was Parliament's intention. Conversely if 'an injury' is understood to mean a compensable injury which results in consequences rendering it a serious injury, the scheme of the Act operates sensibly.

It follows that in our view the provisions of the Act as a whole and s 134AB in particular favour the construction which we prefer.[27]

Section 134AB(21)

54 In holding that s 134AB(21) of the Act did not prevent Mr Susnjara from making the second sub-s (4) application, the judge relied upon the legislative history of s 134AB(21). Accordingly, it is necessary to describe this legislative history.

55 In its original form, s 134AB(21) provided:

If a worker makes an application for leave to bring proceedings in accordance with subsection (16)(b) and fails to satisfy a court that the injury is a serious injury, the worker is not entitled to make a further application for leave to bring proceedings in respect of the same claimed cause of action.

56 On 17 June 2009, s 134AB(21) was amended by s 57(4) of the Accident Compensation Amendment Act 2010 ('the 2010 Act'). By s 57(4) of the 2010 Act, the current text of s 134AB(21) was substituted for the original text. Recapitulating, the substituted and current version of the section now provides:

If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.

57 The judge noted that s 134AB(21), in its original form, prohibited the making of a second sub-s (16)(b) application for leave to bring a proceeding in respect of the 'same claimed cause of action'. As the judge put it:

In other words, if a worker sought leave to bring proceedings in relation to a cause of action and failed to satisfy a court that the relevant injury was a serious injury, the worker could not make a further application for leave based on the same cause of action. That cause of action was closed to the worker.[28]

58 The judge described the original version of s 134AB(21) as containing a 'somewhat broad prohibition'.[29] His Honour noted that there was no definition of the expression 'same claimed cause of action', nor of the expression 'cause of action', in the Act.[30]

59 After referring to authority[31] and dictionary definitions, the judge concluded that the expression 'cause of action' is 'patently a broader term than "an injury" or "that injury"'.[32] From this, the judge concluded that the amendment made by the 2010 Act:

narrowed the scope of the prohibition applying to further applications. Viewed in this way, the prohibition changed from being in relation to the facts or matters giving rise to the relevant legal proceedings to a prohibition in respect of a particular injury - 'that injury'.[33]

60 The judge then observed that the current s 134AB(21) contained no reference to sub-s (16)(b), nor any reference to leave to bring proceedings as granted by a court. His Honour then said:

Further, the main clause of the previous provision contained a prohibition upon a further application for leave to bring proceedings in respect of the same claimed cause of action. After the amendment, the prohibition is upon a further application pursuant to sub-s (4) in respect of 'that injury' - that is, 'an injury' as being the basis of an application under sub-s (4).

The distinction between the two seems to me to be as follows. As discussed above, the pre-amendment provision operated in the context of a court-based cause of action. If a worker went to Court (pursuant to s (16)(b)) seeking leave to bring proceedings based on a cause of action and failed the serious injury test, such worker could not make a subsequent application in respect of 'the same claimed cause of action' (again, my underlining). By way of contrast, the amended provision is not based upon Court proceedings. There is no reference to sub-s (16)(b). There is no reference to failure to satisfy a Court. There is no reference to a further application for leave to bring proceedings. There is no reference to 'the same claimed cause of action'.

In summary, the pre-amendment version of the sub-section was directed at prohibiting a previously unsuccessful litigant - a litigant who has actually been unsuccessful before a Court - from attempting to bring legal proceedings based upon the same cause of action. The amended version of sub-s (21) is based upon sub-s (4). That in turn should be seen in the context of preceding provisions. Damages may be recovered in respect of 'an injury' - see, for example, sub-ss (1) and (2). If the injured worker has made an application under sub-s (4) in respect of an injury, the amended sub-s (21) precludes the worker from making a further application 'in respect of that injury'. The previous references to sub-s (16)(b), leave to bring proceedings and 'the same claimed cause of action', have been removed. The pre-amendment provision was directed at proceedings and causes of action and the avoidance of repetition of the latter. The post-amendment version is directed at the prohibition of repeated applications in respect of 'an injury'.[34]

61 The judge then summarised his conclusions by saying that the injury relied upon in the first sub-s (4) application was to the wrists and hands. No further application could be made in respect of that injury. The present application is one in respect of the shoulders. No statutory prohibition exists in relation to the bringing of that application.[35]

62 In rejecting a submission made by Museums Victoria that 'injury' in sub-s (21) should be given the same meaning as it was given in sub-ss (1) and (2) by this Court in Georgopoulos, the judge distinguished Georgopoulos on the basis that Georgopoulos 'deals with what occurs after the injured worker has succeeded in passing through the legislative gateway'.[36] His Honour said that, '[t]he focus then is upon the cause of action, the injuries being relied upon extending beyond that which was the basis of the application pursuant to s 134AB(16)(b)'.[37] His Honour summarised Georgopoulos as being authority for the proposition that once an injured worker satisfied the statutory test in relation to an injury sustained in a particular employment context, there could be reliance upon all aspects, physical and mental, of that injury in the subsequent common law proceedings.[38]

63 The judge said that the 'vice addressed by s 134AB(21)' related to a worker 'making multiple attempts to access the serious injury gateway for a particular injury in respect of which a previous attempt has been made'.[39] His Honour said that the section, however, did not prevent a worker from making a further attempt to access the gateway by relying on a different specific injury which had not been the subject of any earlier application.

64 In this Court, Museums Victoria submitted that the word 'injury' in s 134AB(21) of the Act refers to the total injury suffered by the worker in the relevant compensable circumstances. This was the meaning given to the word 'injury' in ss 134AB(1), (2), (15), (22) and (36) by this Court in Georgopoulos. That is, it was submitted that the word 'injury' encompassed all the injuries sustained by the worker in the same compensable circumstances.

65 In support of its contentions, Museums Victoria referred to the presumption that words in a statute are used consistently to express the same meaning, especially when they occur within the same section of an Act.[40] Museums Victoria also referred to the decision of the Privy Council in Slazengers (Aust) Pty Ltd v Burnett,[41] where Lord Simonds, delivering the advice of the Judicial Committee, said, in respect of the question whether the word 'injury' should be given different meanings in successive paragraphs of s 7(1) of the Workers Compensation Act 1926 (NSW):

The improbability of the word 'injury' bearing a different meaning in successive paragraphs of the same sub-section is so great that any legitimate interpretation which avoids this result would appear preferable.[42]

66 Museums Victoria noted that the amendment to s 123AB(21) by the 2010 Act was made following a review of the Victorian Accident Compensation Scheme conducted by Mr Peter Hanks QC in August 2008. Museums Victoria relied upon a statement Mr Hanks made in his report:

It appears that the drafting of section 134AB(21) has created an unintended loophole. A prohibition on repeated applications accords with the common law principle that the public interest requires that there be an end to litigation. Allowing more than one application for the same injury arising from the same circumstances contradicts that principle, and is neither time nor cost-effective.

I recommend that the [Act] be amended to clarify section 134AB(21), and remove the unintended loophole that has arisen. The sub-section should make it clear that, where an application for serious injury has been denied or accepted, or has resulted in a determination of serious injury (including a deemed determination), or has otherwise been resolved, a worker may not make a further application for the same cause of action.[43]

67 Museums Victoria submitted that the amendment made by the 2010 Act was to close 'an unintended loophole' that allowed workers to make multiple applications under s 134AB(4) 'for the same injury arising from the same circumstances'. Properly understood, and contrary to the judge's conclusion, the amendment did not 'narrow the scope of the prohibition'.[44]

68 In this Court, Mr Susnjara supported the judge's reasoning. He submitted that, on a plain reading of the text of s 134AB(21), the word 'injury' in that section referred to the specific injury which the worker alleged was a serious injury in an application under sub-s (4). Section 134AB(21) prohibited a second sub-s (4) application in respect of that specific injury and no other. On its terms, s 134AB(21) said nothing about a worker's entitlement to make a further sub-s (4) application in respect of a different injury - being a different injury which the worker asserted was a serious injury within the meaning of the Act.

69 Additionally, Mr Susnjara supported the judge's reasoning that the amendment made by the 2010 Act 'narrowed the preclusion by no longer preventing a further application for injuries not [the] subject of the previous application relating to the same cause of action'.

70 In support of his submissions, relying upon the High Court's decision in Commissioner of Taxation v Consolidated Media Holdings Ltd,[45] Mr Susnjara submitted that the task of statutory construction must begin and end with a consideration of the statutory text.[46] Again, he submitted, a plain reading of sub-s (21) did not preclude the making of the second sub-s (4) application. Sub-section (21) referred to the injury in respect of which a previous sub-s (4) application had been made by a worker. It was only that injury in respect of which a further application was prohibited - not some other injury suffered in the same incident or set of circumstances, or due to the same work process, and which the worker asserts is a 'serious injury' within the meaning of the Act.

71 Mr Susnjara also submitted that if Parliament had intended to confine a worker to one serious injury application 'per period of employment', it would have been a simple matter for Parliament to use the same language as that used in s 104B(5A), which provides that a worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s 98C; and the language used in s 104B(5AA) which provides that a worker can only make one claim for compensation under s 98 in respect of injuries arising out of the same event or circumstance.

72 Finally, Mr Susnjara submitted that the Act is beneficial legislation and, as such, should not be construed so as to narrow a worker's rights unless a clear purpose to do so is evinced by Parliament.[47]

73 The principles to be applied in construing the relevant provisions of the Act are not in dispute. As the High Court has said on a number of occasions, in undertaking that task it is necessary to have regard to the text, context and purpose of the relevant provisions.[48]

74 In Georgopoulos, this Court considered three possible constructions of the word 'injury' in ss 134AB(1) and (2) of the Act. The three constructions were as follows:

(1) The first construction (rejected in Georgopoulos) was that sub-s (2), on its face, only authorised the recovery of damages in respect of an injury, if that injury is a serious injury. A determination by a court that an injury is a serious injury, or a certification or deeming that an injury is a serious injury, under s 134AB, does not operate to overcome the prohibition, expressed in sub-s (1) against the recovery of damages in respect of any other injury. Accordingly, on such a construction of sub-s (2), a worker may only recover damages in respect of an injury, if that particular injury is a serious injury.[49]

(2) The second construction (also rejected in Georgopoulos) involved accepting the proposition that because the singular includes the plural,[50] the reference to 'an injury' and 'the injury' in sub-ss (1) and (2) may be read to refer to 'injuries' plural. As this Court pointed out in Georgopoulos, however, the correctness of this proposition may not resolve the construction question because if 'an injury' is read as 'injuries', then the question remains whether it is sufficient for the injuries to comprise within them or result in a serious injury, or whether s 134AB(2) requires that each identifiable separate injury have consequences which render it a serious injury.[51]

(3) The third construction, and the one adopted in Georgopoulos, is, as we have already said, that 'the injury' is the compensable injury in the sense of the total injury suffered in the relevant compensable circumstances.[52]

75 The construction arrived at in Georgopoulos followed this Court's detailed consideration of the other sections of the Act and sub-sections of s 134AB to which we have already referred. It is a construction which gives the Act, and in particular

s 134AB, a harmonious operation. Additionally, it is a construction which makes workable the various sub-sections that deal with common law damages claims once a gateway has been accessed by a worker.

76 In our view, the word 'injury' in s 134AB(21) must be given the same meaning as it is given in the other sub-sections of s 134AB to which we have referred. There is no warrant for giving the word 'injury' in sub-s (21) a different meaning from that in sub-ss (1), (2), (15), (22) and (36). As was said by Hodges J in Craig Williamson Pty Ltd v Barrowcliff:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.[53]

77 Mr Susnjara's arguments to the contrary involve looking at sub-s (21) in isolation from the rest of s 134AB, and then merely giving the words in the sub-section their literal meaning without reference to context or purpose. His arguments mirror the arguments made by the respondent in Georgopoulos when it submitted that the first of the three constructions referred to above should be preferred. Those arguments were rejected in Georgopoulos. They must be rejected again - there being no warrant for giving the word 'injury' in sub-s (21) a different meaning from that which it has in the other sub-sections of s 134AB.

78 In arriving at our conclusion, it has not been necessary to determine whether the amendment to sub-s (21) brought about by the 2010 Act narrowed the prohibition contained in that sub-section. We would, however, observe that it seems unlikely that the Legislature, in passing the 2010 Act, intended to narrow the scope of the prohibition in sub-s (21).

79 As to Mr Susnjara's submission that the Act is beneficial legislation and should be construed beneficially to the worker, we would simply observe that the question of whether the Act is beneficial, and thus falls to be construed beneficially, is not an easy one having regard to the interrelation between provisions in the Act which 'give' on the one hand, and those which 'take' on the other hand.[54] Even if one accepts that the Act is remedial and falls to be construed accordingly, however, there would still be no basis for construing the word 'injury' in sub-s (21) differently from the way it has been construed in the other sub-sections to which we have referred. As Gageler J explained in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act:

The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation 'rarely pursues a single purpose at all costs' and that '[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling'.[55]

80 The wider construction given, by Georgopoulos, to the word 'injury' in

ss 134AB(1) and (2) might be said to be beneficial. The principle that beneficial legislation should be interpreted beneficially does not permit of a construction of s 134AB(21) which gives a different and more limited meaning to the word 'injury'. There is no basis for concluding that, when enacting s 134AB, the Legislature intended the word 'injury' to have different meanings in different sub-sections of the section.

81 It follows from the above, that the order of the judge on the trial of the separate question, being premised on an erroneous construction of s 134AB(21), must be set aside. That is, however, not the end of the matter.

82 The trial of the separate question appears to have proceeded on an assumption that Mr Susnjara's wrist injuries arose out of the same 'relevant compensable circumstances' as his shoulder injuries. The documentary material relied upon at trial, however, reveals that that assumption may not be correct, and that it is possible that, in truth, the wrist injuries may have arisen in different compensable circumstances from the compensable circumstances giving rise to the shoulder injuries.

83 At a very high level of generality, it might be said that repetitive work performed by Mr Susnjara as a painter caused him to suffer injuries to his wrists and shoulders. At a more precise level, it may be that Mr Susnjara suffered injuries to his wrists as a result of performing repetitive activities involving his hands and wrists; and that he suffered injuries to his shoulders when performing different activities which involved repetitive shoulder movements and/or overhead work. This scenario seems to us to be at least arguable; as is the possibility that the wrist injuries and the shoulder injuries, sustained in different specific circumstances, arise out of different compensable circumstances. The investigation of this issue is fact-specific, and has not yet been undertaken. The investigation of the issue may require the taking of evidence (although we say nothing about whether any particular evidence which either party may wish to adduce will be admissible). In any event, this Court is not the appropriate forum in which such a fact-specific inquiry should be undertaken at first instance.

84 It follows that the question of whether the second sub-s (4) application contravenes s 134AB(21) should be remitted to the County Court for rehearing and determination in accordance with these reasons. As we have said, the issue underlying the question of whether the second sub-s (4) application is invalid is fact-specific and will involve more detailed attention being given to the precise terms, and underlying basis, of each of the sub-s (4) claims, than has occurred to date.

85 We will make orders granting Museums Victoria leave to appeal, allowing the appeal, setting aside the orders made in the County Court on 4 August 2020, and remitting the proceeding to the County Court for rehearing and determination in accordance with these reasons.

[2] Susnjara v Museums Victoria [2017] VCC 524 ('First Application Reasons').

[6] See r 47.04 of the County Court Civil Procedure Rules 2018.

[7] [2012] VSCA 179; (2012) 37 VR 232 (Osborn JA, J Forrest and Beach AJJA) ('Georgopoulos').

[8] Susnjara v Museums Victoria [2020] VCC 1128 ('Reasons').

[11] [2012] VSCA 179; (2012) 37 VR 232.

[18] Accident Compensation Act 1985 s 98C.

[21] Section 134AB(3)(a) provides:

(3) Subject to subsection (4A), a worker may not bring proceedings in accordance with this section unless -

(a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or

[22] Accident Compensation Act 1985 s 104B(9).

[23] Georgopoulos [2012] VSCA 179; (2012) 37 VR 232, 251-2 [86]-[94] (footnotes in original).

[24] Accident Compensation Act 1985 s 134AB(22) provides:

(22) A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury -

(i) if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $52 220 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or

(ii) in excess of $1 175 820 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or

(i) if the total pain and suffering damages assessed, before the reduction (if any) under section 26(1) of the Wrongs Act 1958 and before the reduction (if any) under subsection (25), is less than $50 440 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or

(ii) in excess of $511 920 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or

(c) damages of any other kind, other than damages in the nature of interest.

[25] Georgopoulos [2012] VSCA 179; (2012) 37 VR 232, 252-4 [95]-[99] (footnote in original).

[26] Ibid 254 [100]-[102] (citations omitted).

[31] Including Read v Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128; Bennett v White [1910] UKLawRpKQB 116; [1910] 2 KB 643; Sugden v Sugden [1957] 1 All ER 300.

[40] Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452; Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154; (2018) 56 VR 674, 730 [241] ('Bauer Media').

[41] [1951] AC 13 ('Slazengers').

[43] Hanks, P. Accident Compensation Act Review, Final Report, August 2008.

[45] [2012] HCA 55; (2012) 250 CLR 503 ('Consolidated Media').

[47] See Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, 350 (Kirby J).

[48] Consolidated Media [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

[49] See Georgopoulos [2012] VSCA 179; (2012) 37 VR 232, 249 [77].

[50] See s 37 of the Interpretation of Legislation Act 1984.

[51] See Georgopoulos [2012] VSCA 179; (2012) 37 VR 232, 249 [78].

[53] [1915] VicLawRp 66; [1915] VLR 450, 452. See also Slazengers [1951] AC 13, 21; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618; Bauer Media [2018] VSCA 154; (2018) 56 VR 674, 730 [241].

[54] See generally, Brooking J's discussion of whether the Transport Accident Act 1986 is remedial legislation in Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447, 462.

[55] (2016) 260 CLR 232, 270-1 [92].