Plaintiff v First Defendant

2 In paragraph 17 of his statement of claim, the plaintiff alleges that, as a result of the fall, he suffered injury. Subparagraphs (a) to subparagraph (m) of the particulars to that paragraph allege that the plaintiff suffered a number of organic injuries. They allege: injury to the left ankle, (subparagraphs (a) to (c)), injury to the cervical spine (subparagraphs (d) to (i)), and injury to the lumbar spine (subparagraphs (j) to (m)). The next three particulars plead psychiatric injury, namely, a chronic major depressive disorder (subparagraph (n)), an anxiety disorder (subparagraph (o)), and "psychological injury including depression, anxiety and stress" (subparagraph (p)).

3 In its defence, the first defendant has denied that the plaintiff is entitled to bring proceedings in respect of the organic injuries specified in subparagraphs (a) to (m), on the grounds that the certificate, issued by the Victorian WorkCover Authority ("VWA") to the plaintiff under s 134AB(16)(a)(ii) of the Accident Compensation Act 1985 ("the Act"), was limited to psychological and/or psychiatric injuries arising from the consequences of the plaintiff's physical injuries, which he sustained on 18 September 2006.

4 In the summons which is before me, the first defendant has sought summary relief in relation to the aspect of its defence to which I have just referred. By the summons, it seeks relief pursuant to Rules 23.01 or 23.03 of the Supreme Court Rules, or alternatively, it seeks a preliminary hearing, pursuant to Rule 47.04, on the question whether the plaintiff may bring proceedings to recover damages in respect of the physical injuries alleged by him. At my suggestion, Mr S O'Meara SC, who appeared with Mr S Martin, on behalf of the first defendant, accepted that it was appropriate that the application be made under r 23.01, namely, an application to stay the part of the claim made by the plaintiff in respect of the injuries pleaded in subparagraphs (a) to (m) to paragraph 17 of the statement of claim.[1] Mr A Ingram, who appeared on behalf of the plaintiff, did not contend that such an application was an inappropriate method of dealing with the point raised by the first defendant. Mr O'Meara also informed me that the second named and third named defendants were each aware of the application made by the first defendant, but they did not wish to participate in it.

5 It is only necessary to set out, in brief compass, the background circumstances, which form the basis of the application which is made before me. On 22 July 2008, the plaintiff lodged a serious injury application in respect of his injuries pursuant to s 134AB(4) of the Act. The application was based on the definition of serious injury in s 134AB(37)(a) of the Act, and relied upon claimed physical injuries to the spine and left foot. The plaintiff sought leave to commence proceedings to recover pecuniary loss damages and pain and suffering damages.

6 On 19 November 2008, the solicitors for the VWA wrote to the plaintiff's solicitors, advising that the physical injuries, relied on by the plaintiff, were not deemed to be serious injuries within the meaning of s 134AB(37), that the VWA was not satisfied that the plaintiff had suffered a serious injury within the meaning of the Act, and that, therefore, the VWA would not issue a certificate to the plaintiff pursuant to s 134AB(16)(a) of the Act. Pursuant to s 134AB(16)(b), the plaintiff then had 30 days, from the date of that advice, in which to make an application to the court seeking leave to bring proceedings. However, it was not until 22 December 2008 that an originating motion was issued on behalf of the plaintiff seeking leave to commence common law proceedings. After it was brought to the attention of the plaintiff's solicitors that the proceeding had been commenced out of time, the parties executed consent orders that the proceeding be dismissed with no orders as to costs.

7 Subsequently, on 11 September 2009, the plaintiff served a second serious injury application upon the VWA. That application set out the same physical injuries as those contained in the first application. In addition, it listed the following injuries:

"Psychological or severe mental injuries, including but not limited to depression, anxiety and stress, arising from the consequences of the physical injury" ('The psychological injuries').

8 On 1 December 2009, the solicitors for the VWA wrote to the solicitors for the plaintiff referring to the earlier application, and referring also to s 134AB(21), which provides that if a worker, having made an application for leave to bring proceedings, 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.

9 On 20 January 2010, the plaintiff issued a second originating motion seeking leave to commence common law proceedings. That matter came on before Judge Bowman of the County Court on 26 October 2010. His Honour heard preliminary argument as to whether the plaintiff was entitled to bring the second originating motion. On 16 December 2010, Judge Bowman delivered reasons for judgment. His Honour concluded (at paragraph 70 of the reasons):

"In summary, I am of the view that the further application is valid only insofar as it relates to the mental injury previously described, which injury, to be serious within the meaning of the Act, must meet the requirements of paragraph (c) of the definition contained in section 134AB(37). The case may proceed on the basis that the plaintiff is allowed to adduce evidence only in relation to this injury and the issue of whether it satisfies the statutory requirements."

10 Following his Honour's decision, the VWA, on 31 January 2011, granted a serious injury certificate to the plaintiff pursuant to s 134AB(16)(a)(ii). The certificate is in the following form:

"For the purposes of section 134AB of the Accident Compensation Act 1985, Allianz Workers Compensation (Vic) Limited being appointed as an authorised agent of the Victorian WorkCover Authority pursuant to section 23 of the Act, certifies in respect of John Georgopoulos that:

(a) Allianz Workers Compensation (Vic) Limited is satisfied that the injury ('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 is a serious injury within the meaning of:

• Section 134AB(38)(b)(i) and (ii)

(b) Subject to compliance to subsection 134AB(12) of the Act, consent is given pursuant to section 134AB(16)(a) of the Act for John Georgopoulos to bring proceedings for the recovery of:

11 Based on the terms of the certificate, Mr O'Meara submitted that, pursuant to s 134AB of the Act, the plaintiff is precluded from claiming damages for the physical injuries specified in subparagraph (a) to subparagraph (m) of the particulars to paragraph 17 of the statement of claim. Mr O'Meara submitted that the plain effect of s 134AB, and, in particular, subsections (1) and (2), is that a worker is only entitled to claim damages in respect of an injury, which is a serious injury. He pointed to the five "gateways", by which an injury, sustained by a worker, may be determined by a court, certified or deemed, to be a "serious injury" under s 134AB.[2] He submitted that, where an injured worker is able to successfully navigate one of those gateways, the worker is entitled to bring proceedings for the recovery of damages, but only in respect of the injury which, under s 134AB, constitutes a serious injury. Mr O'Meara submitted that the plain intention of s 134AB is to restrict a common law claim for damages, for injuries arising out of a plaintiff's employment, to injuries which are constituted as "serious injuries" under s 134AB. He submitted that the decisions, of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd[3], of Beach J in Harvey v Methodist Ladies College[4], and of Osborn J in Ronchi v Alcoa Portland Aluminium Pty Ltd[5], are each authority for the proposition that a plaintiff, who claims damages for injuries arising out employment, is not permitted to recover damages for any injury, which has not been determined, certified or deemed, under s 134AB of the Act, to be a serious injury.

12 In response, Mr Ingram submitted that, in a common law proceeding for damages for injuries arising out of employment, a plaintiff is not confined, by s 134AB, to the injuries which have been determined, certified or deemed to be serious injuries. He pointed to a number of cases, in which it has been held that, under s 134AB, the requirement that a plaintiff establish a "serious injury", is a "gateway" requirement, and that, once that gateway has been accessed, the cause of action brought by a plaintiff is a common law cause of action.[6] Mr Ingram submitted that the effect of those decisions is that, once the plaintiff has accessed a "gateway" through s 134AB, the plaintiff has a fully fledged common law action, which is not restricted to a claim relating solely to the "serious injury" or "serious injuries" sustained by the plaintiff.

13 Mr Ingram further submitted that, for a number of years, it has been the practice, to claim damages for all the injuries sustained by a plaintiff, arising out of his or her employment, notwithstanding that some, or many, of them, have not been determined or deemed to be serious injuries. Mr Ingram submitted that the construction, contended for by the first defendant, would produce an artificiality in common law proceedings brought on behalf of injured workers, particularly where, as in many cases, it is difficult to disentangle the injury, relied on to constitute a serious injury, from the other injuries and consequences of an incident, or incidents, which gave rise to those injuries. In particular, he submitted that the construction, confining a plaintiff to claiming damages only in respect of a serious injury or injuries, would produce anomalous consequences, where a plaintiff has suffered a severe physical injury, which is held to be a serious injury, and, as a result, has also sustained a significant psychological reaction, which is not found to be a serious injury. In such a case, he submitted, it would be incongruous if the plaintiff's claim for damages were confined only to the physical injury sustained by the plaintiff.

14 The starting point, for resolution of the issue raised by the first defendant, is, of course, to be found in the express terms of s 134AB. In particular, the first two subsections of that provision are of essential importance. Insofar as they are relevant to this proceeding, they provide:

"(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."

15 It is important to note, first, that subsection (1) relates expressly to claims in respect of "an injury". It prohibits the institution of proceedings, in respect of that injury ("the injury") except as permitted by the section. Subsection (2) specifies when s 134AB permits such proceedings to be brought. It is expressed in clear terms, and provides that a worker may recover damages in respect of "an injury" if that injury ("the injury") is a serious injury and arose on or after 20 October 1999.

16 Thus expressed, subsection (2), on its face, only authorises 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 subsection (1), against the recovery of damages in respect of any other injury. Accordingly, on a plain construction of subsection (2), a worker may only recover damages in respect of an injury, if that particular injury is a serious injury.

17 Such a construction of s 134AB is supported by the scheme and the purpose of s 134AB. As Mr O'Meara pointed out, s 134AB contains what have been described as five "gateways", which a plaintiff may traverse, in order to be entitled to institute proceedings for damages in respect of an injury.[7] Each of those five "gateways" involve the establishment by the plaintiff of a serious injury, the certification by the VWA of an injury as a serious injury, or the deeming of an injury to be a serious injury in certain circumstances. In that way, the notion of a "serious injury" is central to the scheme contained in s 134AB.

18 The clear purpose of the legislature, in the Act in s 134AB, was to preclude proceedings for damages in respect of minor injuries.[8] It is true that it would not be contrary to such a purpose, if a plaintiff were to claim damages for a serious injury, as well as for lesser injuries. However, a construction of s 134AB(1) and (2) so as to restrict claims of damages to serious injuries, would be more consonant with the statutory purpose.

19 On the other hand, the construction contended for by Mr Ingram would necessarily involve a rewriting of subsection (2) to provide that a worker may recover damages in respect of an injury, if the worker has sustained "an injury" which is a serious injury. Such a construction would only be warranted, if it were supported by appellate authority, or if a literal construction of s 134AB produced such an anomalous result, that it could not have been intended by the legislature.

20 Mr Ingram referred to two decisions, which, he submitted, have the effect that, once a plaintiff has traversed one of the "gateways" prescribed by s 134AB, an injured worker is entitled to bring a common law proceeding for damages in respect of any injury suffered by that worker. The cases, to which Mr Ingram referred, establish the proposition that, once an injured worker has passed through a serious injury "gateway", the cause of action, by which an injured worker might seek to claim damages, is a common law cause of action. However, on a proper analysis, they do not have the effect that, once a plaintiff has satisfied the "serious injury" condition prescribed by s 134AB(2), the plaintiff is entitled to claim damages in respect of any injury, regardless of whether it is a "serious injury" for the purposes of s 134AB.

21 In Wilson v Nattrass[9], the Full Court was concerned with the question whether s 93(1) of the Transport Accident Act 1986 (which is relevantly the same as s 134AB(1)) applies to proceedings brought in Victoria in respect of a motor vehicle accident which occurred interstate.

22 In that case, the two plaintiffs were injured in a motor vehicle accident in South Australia. They commenced proceedings in Victoria to recover damages against the driver of the other vehicle. The defendant submitted that the proceeding was not justiciable in Victoria, for the purposes of the first rule in Phillips v Eyre[10], because the plaintiffs had not established that they had suffered serious injuries for the purposes of s 93(1) of the Transport Accident Act. The defendant submitted that that provision was part of the substantive law of Victoria, and, as such, had the effect that the proceedings, brought by the plaintiff, were not justiciable in Victoria. On the other hand, the plaintiff submitted that ss 93(1)-(4) of the Transport Accident Act did not prevent or abolish a cause of action in common law negligence, but, rather, they regulated what damages might be recovered. In their separate judgments, Ashley J and Hedigan J[11] each held that s 93(1)-(4) had the effect of contingently extinguishing rights of action for damages at common law, but that, once a prospective plaintiff had passed through one of the prescribed "gateways", the traditional elements of a common law cause of action need only be established. When the plaintiffs had commenced their proceedings, none of the gateways had been accessed. Accordingly, at that point, the claims asserted by them were not justiciable in Victoria.

23 Thus, the decision of the Full Court in Wilson v Nattrass essentially involved the characterisation of the cause of action, which might be instituted on behalf of a prospective plaintiff, once the plaintiff has satisfied the "serious injury" requirement of s 93 of the Transport Accident Act (and, by parity of reasoning, s 134AB of the Accident Compensation Act). However, the fact, that such a cause of action would consist of a common law claim for damages, does not have the consequence that such a common law cause of action might be brought in respect of any injury sustained by the plaintiff. In particular, such a characterisation of the right of action, to be commenced by the injured motorist or (in the case of the Accident Compensation Act) the injured worker, does not, in any way, affect the plain terms of s 134AB(2) of the Accident Compensation Act (and its equivalent, s 93(2) of the Transport Accident Act), namely, that the plaintiff, in such an action, may only claim damages in respect of an injury which is a "serious injury".

24 The other case, relied on by Mr Ingram, is the decision of the Court of Appeal in Swannell & Anor v Farmer[12]. In that case, Mr Farmer was injured in a transport accident in December 1989. He did not take any steps to establish that his injuries were "serious injuries" for the purposes of s 93 of the Transport Accident Act. Mr Farmer died, from unrelated causes, in 1994. The administrator of his estate brought an originating motion in the County Court seeking leave, pursuant to s 93(4) of the Transport Accident Act, to bring proceedings for the recovery of damages in respect of the injuries to Mr Farmer. The judge of the County Court granted the administrator leave to bring such proceedings. On appeal, the Court of Appeal set aside that decision. It held that s 93 of the Transport Accident Act is not a procedural provision barring a remedy, but, rather, it is a substantive provision, which had conditionally extinguished the right of Mr Farmer to issue common law proceedings for damages. Thus, at the time of Mr Farmer's death, there was no cause of action vested in Mr Farmer which, pursuant to s 29 of the Administration and Probate Act 1958, had survived for the benefit of his estate.[13]

25 In reaching that conclusion, Batt and Buchanan JJA (with whom Callaway JA agreed) followed the reasoning in Wilson v Nattrass, namely, that the effect of s 93(1) of the Transport Accident Act is to conditionally extinguish the common law cause of action, and that, once one of the relevant gateways has been passed, the right of action of the prospective plaintiff consisted of a common law claim for damages. However, as I have already stated, that conclusion does not, in any way, alter or affect the plain meaning of s 134AB(2) of the Act. The fact that the cause of action, to be relied upon by a prospective plaintiff, is a common law claim for damages, does not, per se, have the effect that, in such a proceeding, the plaintiff may claim damages for any injury sustained in the course of or as a result of his or her employment. Rather, in such a proceeding, the plaintiff is confined to claiming damages at common law in respect of any injury or injuries which, by passing through one of the five gateways prescribed by s 134AB, is or are serious.

26 On the other hand, the construction of s 134AB(2), contended for on behalf of the first defendant, is supported by the three decisions of trial judges of this Court, to which Mr O'Meara referred, namely, Ronchi v Alcoa Portland Aluminium Pty Ltd[14], Harvey v Methodist Ladies College[15] and Kruisselbrink v Nationwide Maintenance Services Pty Ltd[16]. Mr Ingram is correct in pointing out that each of those cases concerned differences, or potential differences, in the date or circumstances of the injury, as alleged in the pleadings in the common law proceedings on the one hand, and, on the other hand, in the serious injury certificate, or the order of the judge determining that the plaintiff's injury was a serious injury. However, the reasoning of the judges, in each of the three decisions, was based on the proposition that it is the identity of the injury (which is certified or determined to be serious), which is critical to the right of the plaintiff to claim damages, and not the identity of the cause of action, on which the plaintiff relies, or the circumstances in which, or the date on which, the particular injury was sustained.

27 In Harvey v Methodist Ladies College, a judge of the County Court had ordered, by consent, that the plaintiff have leave, pursuant to s 134AB of the Act, to bring proceedings for damages in respect of "injury to the lumbar spine on or about 25 October 2001". In paragraph 3 of her amended statement of claim, the plaintiff claimed that, in the course of her employment from October 1999 to 25 October 2001, she performed tasks involving the lifting of heavy and awkward weights, frequent bending, and frequent manoeuvring of heavy and awkward weights and trolleys. In paragraph 4, she alleged that the work duties caused her to suffer injury on or about 25 October 2001. By its defence, the defendant pleaded that the plaintiff was precluded from relying on any cause of action, other than that giving rise to injury on or about 25 October 2001.

28 The case came before Beach J on a preliminary question as to whether the plaintiff could maintain the claim pleaded in the amended statement of claim. Beach J, having considered the materials on which the plaintiff's serious injury application had been based, concluded that the plaintiff had been given leave to bring proceedings in respect of an injury suffered on or about October 2001, and in respect of work performed from October 1999. Thus, his Honour held that the plaintiff was permitted to maintain the claim in paragraph 3 of the amended statement of claim. Paragraph 5 of the plaintiff's amended statement of claim also pleaded that the plaintiff had been required to continue to work when the defendant knew that the plaintiff was aggravating her injury. In respect of that pleading, Beach J[17] stated:

"Paragraph 5 of the plaintiff's amended statement of claim is somewhat more problematic. Insofar as the plaintiff seeks to plead and prove a cause of action leading to a further and different injury after October 2001, such a claim is precluded by the operation of Judge Strong's order. However, insofar as the plaintiff contends that any further injury was the natural and probable consequence of the injury in respect of which leave has been granted, then the same is permissible ... ."

29 Thus, while the issue, relating to the plaintiff's pleading, concerned the dates upon, or between, which the plaintiff alleged she sustained her injury, Beach J resolved the question by focusing on the identity of the injury alleged by the plaintiff, and by determining whether that injury was the same injury, in respect of which leave had been granted to bring proceedings pursuant to s 134AB.

30 In Ronchi v Alcoa Portland Aluminium Pty Ltd, the plaintiff, in common law proceedings, claimed damages for injury allegedly suffered during his employment from December 1992 to November 1997. Osborn J, having referred to the materials on which the serious injury application was based, in the decision of the judge who granted leave to the plaintiff under s 135 of the Act, reached the following conclusions:

"[49] In my view, when his Honour's reasons are read carefully and in the context of the application before him, it is apparent the injury for which leave to proceed was granted was injury to the lower back suffered during ongoing employment in 1995.

[50] In my view, therefore, the defence ... should be upheld in part and the plaintiff's statement of claim amended to refer to injury suffered in this period rather than the period 1 December 1992 to 12 November 1997 as currently pleaded."

31 Thus, in Ronchi, Osborn J was, similarly, concerned to identify the injury in respect of which the County Court judge granted leave to bring proceedings. Since, in that case the injury was alleged to have been sustained during a course of repetitive work over a period of time, it followed that the identity of that injury was necessarily defined by the dates, between which the injury was said to be sustained. Accordingly, any injury sustained by the plaintiff in the period December 1992 to 1994, and in the period 1996 to November 1997, did not come within the terms of the County Court judge's order, and therefore was not an injury found by the County Court judge to be a serious injury.

32 In Kruisselbrink v Nationwide Maintenance Services Pty Ltd, the plaintiff, who had been employed as a cleaner, was granted a certificate by the VWA under s 134AB(7), to the effect that the injury sustained by him on 5 May 2005 was a serious injury. At trial, the plaintiff sought leave to amend his statement of claim to plead injury sustained between 2001 and May 2005, from two particular tasks, which he was required to perform, repetitively, during his employment. The defendant objected to the amendment, on the basis it was inconsistent with the terms of the certificate. J Forrest J granted the plaintiff leave to amend the statement of claim. His Honour reasoned that, where a plaintiff makes a serious injury application, the focus of the VWA (and, if necessary, the judge hearing the serious injury application) is not upon the cause of action which the worker may have, "... but rather on the nature and effects of the compensable injury".[18] His Honour thus concluded:

"[49] Accordingly where a worker demonstrates that his or her injury is indeed serious, and is related to his or her work, then a claim based on those aspects of the giving rise to that injury can be entertained at the damages trial. ...

[51] Brambles[19] ... demonstrates that on an interlocutory application it is appropriate for a court, in considering the terms of an order granting leave, to have regard to the material provided to the court to clarify the particular injury in respect of which leave was granted. The same would necessarily apply, I suggest, where a certificate under s 134AB(16)(a) has been granted."[20]

33 Thus, in reaching the conclusion, that the proposed amendments to the statement of claim did not contravene the effect of the certificate issued by the VWA, J Forrest J focused, essentially, on the identity of the injury, in respect of which the certificate had been granted by the authority.

34 It is clear, from the foregoing analysis, that the three decisions, to which I have just referred, support the construction of s 134AB(2) of the Act, which was contended for by the first defendant. In each case, it was necessary to identify the injury, in respect of which leave had been granted by a court, or which had been certified by the relevant authority. Where it was alleged that the injury had been sustained over a period of time, the particular injury, which was the subject of the certificate or leave, was, necessarily, defined by reference to the period, during which the plaintiff had asserted that he or she had sustained the relevant injury, when seeking to establish that the injury was a serious injury.

35 The construction of s 134AB, contended for by the first defendant, is also supported by the decision of the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[21]. In that case, the court was concerned with four appeals from orders of judges of the County Court, in separate applications by workers under s 134AB of the Act, for leave to commence proceedings against their respective employers for damages for personal injuries. In one of the cases (St Laurence Community Services (Barwon) Inc & Ors v Gledhill) the injury, relied upon by the plaintiff, was sustained by him before 20 October 1999. On the plaintiff's behalf, it was submitted that it was enough to bring the worker within s 134AB, if the impairment to a bodily function (which arose from the employment) was impairment which "arose on or after 20 October 1999", notwithstanding that the injury was sustained before that date. That submission was rejected by the Court of Appeal, which held that, on its proper construction, s 134AB only applied to injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999. In reaching that conclusion, the court stated:

"... subsection (1) (of s 134AB) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including subsection (2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of subsection (1), compensable injury that is referrable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies. ..., which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description 'serious injury' if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses - first, in prohibiting a common law proceeding for damages in respect of it 'otherwise than as permitted by and in accordance with this section' and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with subsection (2) which, though, essential, is part of the overall scheme: it does not exist independently of it."[22]

36 Mr Ingram further submitted that, if a plaintiff were restricted to claiming damages only in respect of an injury or injuries, which are found, deemed or certified to be serious injuries under s 134AB, but not to other injuries, which the plaintiff may have sustained at the same time as he or she incurred the serious injury or injuries, the trial would proceed on a particularly artificial basis, which could not have been in the contemplation of the legislature. For example, he pointed to the not unusual case where a plaintiff suffers a serious back injury, which is determined, or certified, to be a serious injury. By the time the plaintiff's case reaches trial, the plaintiff also suffers from a serious psychological disorder caused by the pain and restriction suffered by the plaintiff as a result of the lower back injury. Mr Ingram submitted that, if the construction contended for by the first defendant is correct, in such a case, the plaintiff would only be permitted to claim damages for the physical injury, notwithstanding that it was, in a very real respect, intimately interconnected with the plaintiff's psychological condition.

37 Mr Ingram's submission does have some attraction to it. Indeed, the present case is a good illustration of the point made by Mr Ingram. If the first defendant's submissions are correct, the trial will only proceed on the basis of the psychological injury suffered by the plaintiff, and certified by the VWA to be serious, notwithstanding that, it would seem, the psychological injury was a consequence of the physical injury sustained by the plaintiff as a result of his fall. It would be necessary for the plaintiff to lead some evidence as to the effects of his physical injuries, in order to prove how his psychological condition is causally connected to the fall, and thus to the negligence alleged against each of the defendants. In that context, the court would be confronted with the task of being required to ignore the effects of the physical injuries, when assessing damages, notwithstanding that those injuries, and their effects, might be closely intertwined with the plaintiff's psychological injuries and their symptoms.

38 However, notwithstanding the attraction of Mr Ingram's argument, there are, I consider, two answers to it. First, as I have stated, on the plain construction of s 134AB(2), in a common law proceeding, a plaintiff is only entitled to claim damages in respect of that injury or those injuries, which have been found deemed or certified to be a serious injury or serious injuries. While the artificial consequences of such a construction are a matter of concern, they do not, in my view, constitute such an absurdity or incongruity, that I should conclude Parliament could not have intended that s 134AB(2) to be construed according to its ordinary plain language.

39 Secondly, as Mr O'Meara correctly pointed out, in some cases, it may be possible for a plaintiff to rely upon an injury, which has not been specifically determined, certified or deemed to be a serious injury, if it is the natural and probable consequence of an injury, in respect of which leave has been granted.[23] Without determining whether that proposition would hold good in a case, such as that described in the example given by Mr Ingram, some support for it may be found in the judgment of Beach J in Harvey v Methodist Ladies College[24], to which I have referred above.

40 Thus, while the construction of s 134AB(2), contended for by the first defendant, might lead to some artificial results at trial, I do not consider that the consequences of that construction are such as to justify me in disregarding the plain language of s 134AB(2), and in undertaking a re-writing of it. Accordingly, and for the reasons which I have set out above, I uphold the submission made on behalf of the first defendant that the plaintiff is only entitled to plead, and rely upon, such injury or injuries as have been held, certified or deemed to be a serious injury or injuries as defined by s 134AB.

41 It follows that the application, by summons, by the first defendant should succeed. The first defendant is entitled to an order, pursuant to r 21.03 of the Rules of the Supreme Court, staying the claim by the plaintiff for the injuries specified in subparagraphs (a) to (m) of the particulars of injury contained in paragraph 17 of his statement of claim. The practical consequence of that relief is that those subparagraphs should be struck out from the particulars of injury under paragraph 17 of the statement of claim, and I shall make an order to that effect.

[1] Cf Harvey v Methodist Ladies College [2008] VSC 425, [5] (Beach J).

[2] Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 277 ALR 654, 659 [21]-[22].

[3] [2010] VSC 260.

[4] [2008] VSC 524.

[5] [2007] VSC 340.

[6] Wilsons v Nattrass (1995) 21 MVR 41, 55 to 56 (Ashley J), 59-60 (Hedigan J); Swannell v Farmer [1998] VSCA 104; [1999] 1 VR 299, [16], [17], [22], [25], [28] and [31] (per Batt and Buchanan JJA).

[7] Cashman v Brown [2011] HCA 22; (2011) 277 ALR 654, 659-660 [21]-[22].

[8] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 444 (Southwell and Teague JJ).

[9] (1995) 21 MVR 41.

[10] (1870) LR 6 QB 1.

[11] Above, 55 to 56 (Ashley J); 59 to 60 (Hedigan J).

[12] [1998] VSCA 104; [1999] 1 VR 299.

[13] See especially pages 307-309 [21]-[32] (Batt and Buchanan JJA).

[14] [2007] VSC 340.

[15] [2008] VSC 425.

[16] [2010] VSC 260.

[19] Brambles v Wail [2002] VSC 150.

[21] (2005) 14 VR 622; [2005] VSCA 33.

[22] Page 631, [13]; see also Papercorp Pty Ltd v Nicolaou [2006] VSCA 143, [31] (Ashley JA); Brambles Limited v Wail [2002] VSCA 150, [18] (Winneke P, Charles and Batt JJA).

[23] Mahony v J Krustchich (Demolitions) Pty Ltd [1985] HCA 37; (1995) 156 CLR 522, 528-9.