Accessing the appropriate gateway

18 October 2023

The Court of Appeal considered whether it is open to a worker who suffers injury arising from a transport accident sustained in the course of employment, to concurrently pursue proceedings involving leave to bring a common law damages action under 2 separate statutory schemes.

In issue

  • What is the appropriate gateway in Victoria to obtain leave to access common law damages where an injury, in this case psychiatric injury, was sustained in a transport accident and in the course of employment concurrently?
  • Whether a worker can pursue concurrent proceedings for the recovery of common law damages for a work-related injury under 2 different statutory schemes or whether an election is required to be made?

The background

In the period between 2005 and 2015 the Plaintiff was employed as a train driver by Metro Trains Melbourne (Defendant / Appellant). In the course of his employment, he sustained a psychiatric injury following involvement in a series of traumatic incidents culminating in a discrete incident occurring on 17 November 2014 which involved a 'near miss' with a vehicle at a level crossing.

On 17 August 2020 the Plaintiff commenced the first proceeding in the County Court against the Transport Accident Commission (TAC) seeking leave under s 93(4)(c) of the Transport Accident Act 1986 (TA Act) to commence a proceeding for the recovery of common law damages in respect of a psychiatric injury. The injury suffered related to the transport accident on 17 November 2014 (the serious injury application).

At the hearing before the first trial judge in April 2021, the Plaintiff was invited by His Honour to reconsider the proceeding under the TA Act. Namely, whether an alternative application pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (AC Act) ought to be made instead, having regard to the cumulative effects of the history of traumatic events he had been exposed to in the course of his employment.

The TAC proceeding was adjourned in order for the Plaintiff to re-assess his position.

On 29 September 2021 the Plaintiff commenced a second proceeding in the County Court against the Victorian WorkCover Authority (VWA), seeking leave under the relevant provisions of the AC Act to commence common law proceedings in respect of psychiatric injury sustained over the course of his employment.

The decision at trial

On 28 November 2022 both the TAC and VWA proceeding were heard together before the second trial judge in the County Court. The judge granted leave to the Plaintiff to commence proceedings for the recovery of damages in both the TAC and AC Act actions, respectively.

The issues on appeal

The VWA appealed the decision of the trial judge. The TAC did not seek to disturb the judge’s findings as it related to the TAC proceeding.

The VWA’s key ground of appeal contended that the trial judge was in error for deciding that it was open to the Plaintiff to make an application for serious injury under s 134AB of the AC Act in circumstances where each of the incidents relied upon by the Plaintiff as giving rise to a psychiatric injury were, in fact, transport accidents within the meaning of section 93 the TA Act.

The decision on appeal

The Court of Appeal found in favour of the VWA, concluding the trial judge had erred in finding that it was open to the Plaintiff to make a serious injury application under s 134AB(16)(b) of the AC Act.

There was no dispute in the Appeal that the near misses and fatalities that occurred in the Plaintiff’s employment as a train driver, giving rise to his psychiatric injury, were transport accidents within the meaning of the TA Act.

Further, according to the Court of Appeal, sections 134AA and 134AB(1) of the AC Act (and corresponding section 326 in the Workplace Injury Rehabilitation and Compensation Act 2013) were quite clear, providing that if a work-related injury was suffered as a result of a transport accident, the gateway to accessing common law damages was to be the TA Act.

Implications for you

Where an injury arises as a result of a transport accident in Victoria, even if that transport accident occurred in the course of employment, the appropriate gateway to access common law will be the Transport Accident Act 1986.

Updated 16 February 2024: On 8 February 2024, the High Court of Australia refused an application for special leave to appeal.

Metro Trains Melbourne Pty Ltd v Graeme Allan Keay [2023] VSCA 223

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