Alapic v Venture Campbelllfield Pty Ltd (Deregistered) (No 1)

[2024] VCC 1847

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-00731

KATICA ALAPIC	Plaintiff
v
VENTURE CAMPBELLFIELD PTY LTD (DEREGISTERED)	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2024
DATE OF RULING:	22 November 2024
CASE MAY BE CITED AS:	Alapic v Venture Campbelllfield Pty Ltd (Deregistered) (No 1)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1847

RULING (No 1)
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Subject:INTERLOCUTORY APPLICATION

Catchwords:              Limitation of actions – date of accrual – objection against pleading – reliance on injury prior to date of accrual – reliance on negligence prior to date of accrual – injury throughout the course of employment

Legislation Cited:      Limitation of Actions Act1958 (Vic) - Occupational Health and Safety (Manual Handling) Regulations1999 (Vic)

Cases Cited:Alcan Gove Pty Ltd v Zabic [2015] 257 CLR 1; Harriton v Stephens (2006) 226 CLR 52; Tabet v Gett (2010) 240 CLR 537

Ruling:  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mrs M A Hartley KC with	Maurice Blackburn Pty Ltd
Mr A Dimsey
For the Defendant	Mr D McWilliams SC with Mr N Dunstan	Wisewould Mahony

HIS HONOUR:

1Between 1998 and October 2006, the plaintiff worked for Venture Campbellfield Pty Ltd (“Venture”) as a machine operator. During that time, she worked on a draping machine.  She says that such work involved her standing on her tiptoes to place panels into a machine which would press vinyl onto it. She has always  alleged that this repetitive work of going onto her tiptoes has resulted in injury to her left foot.  That injury progressed over time and ultimately required surgery in 2013.  She returned to work after that surgery and worked on until about 2016.  She then left Venture and worked for Nestle for a short period. Her left foot condition worsened and she had a second surgery in 2019.

2It was only in December 2019 that she lodged a Workers’ Compensation claim.  On 22 June 2022, she lodged her serious injury application.  That serious injury application was successful and she came to issue common law proceedings on 26 June 2023.  The defendant immediately took a limitations defence in accordance with s.27D of the Limitations of Action Act 1958 (Vic).  That application was heard on 14 May 2024 by her Honour Judge Clayton.  In the course of her ruling to extend time, her Honour determined that the cause of action for the purposes of the calculation of time in accordance with the Limitation of Actions Act accrued on October 2013.  She made an order in the following terms:

“1.The plaintiff is granted leave nunc pro tunc to bring proceedings out of time pursuant to s23A of the Limitation of Actions Act 1958.”

3The plaintiff then filed a further amended statement of claim dated 3 June 2024.  Broadly, she limited her claim to allege injury arising from 20 October 1999 until the date that she ceased work in 2016.  She further sought to particularise in her allegations of breach and reliance on the Occupational Health and Safety (Manual Handling) Regulations1999, specifically, Regulations 10, 12, 13, 14 and 15 (“1999 Regulations”).  In response, the defendant filed an amended defence which, in broad terms:

(a)   objected to the plaintiff relying on any allegations of negligence or injury arising prior to October 2013;

(b)   objected to the plaintiff relying on the 1999 Regulations as she was not engaged in “hazardous manual handling”.

4Dealing with the first objection, which is that the plaintiff is not entitled to rely on any work process or injury which occurred prior to October 2013.  I ruled against the defendant’s application on the first morning of trial and now set out my reasons in this regard.  The second objection raised by the defendant was deferred until the conclusion of the evidence and ultimately not pursued.

5First, the plaintiff’s serious injury application and draft statement of claim have always referred to the plaintiff sustaining injury throughout the course of her employment.  She has always impugned the work system throughout the course of her employment in her serious injury application affidavit and draft statement of claim.  The pleading which was filed with the Court after the grant of the serious injury certificate replicated that earlier pleading.  So, too, did the further amended statement of claim after her Honour’s ruling on the limitations point.  I set this out to demonstrate that it has always been the case, and remains the plaintiff’s case, that she has sustained injury throughout the course of employment from 1999 to 2016 by reason of the allegedly negligent work system. 

6The defendant took the Court to the detail of her Honour’s ruling in which she described injury to the left foot in 2008 (a bunion) and 2009 (left foot pain) as being unrelated to the ultimate injury which afflicted her in 2013 and which is the pleaded injury sustained as a result of her work throughout the course of her employment.  The defendant further says that the plaintiff ought not be allowed to rely on any alleged negligent work process preceding 2013.  In my opinion, this confuses the purpose of her Honour’s ruling.  Her Honour was ruling specifically in relation to the Limitation of Actions Act and seeking to determine the accrual date for the purposes of calculating the time of delay.  It is accepted that this arose in October 2013 according to the material that her Honour had assessed on that point.  However, the evidence that she had was on an interlocutory application and may not constitute the full range of materials available at the trial.  More to the point, however, is the fact that her Honour was making no comment about the work processes which had led to the relevant injury. The order made at the conclusion of the case was simply that the plaintiff had leave nunc pro tunc.  That in essence means that the plaintiff was at liberty to proceed  with the statement of claim as formulated and before her at that stage.  Her order did not limit the extension of time in any way.  This works substantially against the defendant’s argument.

7Secondly, it was conceded that there is no authority to support the defendant’s proposition that the work processes leading up to the accrual date could not be relied on.  In fact authority suggests the position is the opposite.

8The High Court has repeatedly confirmed that “…damage constitutes the gist of an action in negligence…” and as such “…a plaintiff needs to prove actual damages or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty”.[1]

[1]Alcan Gove Pty Ltd v Zabic [2015] 257 CLR 1; [2015] HCA 33 at [8] citing Harriton v Stephens (2006) 226 CLR 52 at [16] and Tabet v Gett (2010) 240 CLR 537 at [135]

9This emphasises the distinction between a common law cause of action in negligence and a determination regarding a statutorily imposed date on which a cause of action is discoverable by a plaintiff.  The statute determines the accrual date as dependent on “discoverability”.[2] That notion of discoverability  does not form part of the common law cause of action in negligence.

[2]See s. 27F of the Limitations of Acts Act 1958 (Vic)

10The Defendant’s submissions seeks to combine the two concepts in an impermissible way.

11That is the second reason why I will dismiss the defendant’s application.