Borg v The Trustee for AG Airwork Services Trust - [2013] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2012 05130

LAWRENCE BORG	Plaintiff
V
THE TRUSTEE FOR AG AIRWORK SERVICES TRUST	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2013
DATE OF RULING:	27 August 2013
CASE MAY BE CITED AS:	Borg v The Trustee for AG Airwork Services Trust
MEDIUM NEUTRAL CITATION:	[2013] VSC 497

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PRACTICE – Claim for damages for personal injury – Application on day of trial to amend defence to plead defence under Limitation of Actions Act 1958 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC and Mr D Purcell	Arnold Dallas McPherson
For the Defendant	Mr T Casey QC and Mr D McWilliams	Hall & Wilcox

HIS HONOUR:

In this proceeding the plaintiff Lawrence Borg claims damages against the defendant, the Trustee for AG Airwork Services Trust, for injuries which he alleges he sustained in the course of his employment with the defendant as a loader operator and chemical mixer.

The plaintiff alleges that on 6 February 2003, while he was alighting from the cabin of a loader at an airstrip at a property in Warrnambool, he slipped and landed on a rock. As a result he alleges that he suffered injury particularly to his right ankle, to his hip and to his lumbar spine. The plaintiff alleges that the injury was caused as a result of the negligence or breach of duty owed to him by the defendant as his employer.

The proceeding was issued by the plaintiff by writ on 19 September 2012. In circumstances, which I shall detail shortly, the case was set down in March 2013 for trial in the sittings of the Supreme Court at Bendigo commencing on 26 August 2013. The case came on for trial today. Before the jury was empanelled, the defendant has applied to amend its defence to include a plea that the claim by the plaintiff is statute barred under the provisions of the Limitation of Actions Act 1958.

It is common ground that the combined effect of s 5, s 27B(2)(a) and s 40 of the Limitation of Actions Act, and s 134ABA of the Accident Compensation Act 1958, is such that the limitation period for commencing this proceeding expired on 6 February 2011.

In view of the late stage at which the application has been made to amend the defence, it is convenient first to set out, in chronological form, some of the history of the proceeding. That history is as follows.

As I stated, the proceeding was issued by writ on 19 September 2012. On 27 September the defendant entered an appearance to the writ. On the same date it gave notice to the plaintiff that it required the proceeding to be heard before a jury.

On 15 October 2012 the plaintiff filed and served an amended statement of claim. On 16 October the defendant filed and served a defence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 497
Decision Date: 27 August 2013

CaseChat Overview and Summary

The case involved Borg, the plaintiff, against the Trustee for AG Airwork Services Trust, the defendant, concerning a claim for damages due to personal injury. The matter was heard in the County Court of Victoria. The plaintiff alleged that the defendant was negligent in failing to provide a safe working environment, leading to injuries sustained during employment. The defendant initially denied liability but later sought to amend its defence to include a plea of limitation, arguing that the plaintiff's claim was barred by the Limitation of Actions Act 1958. The court had to determine whether the defendant could rely on the limitation defence and whether it was just and equitable to allow the amendment on the day of trial.

The court examined whether the amendment was permissible under the principles governing amendments to pleadings. It assessed the timeliness of the application and the potential prejudice to the plaintiff if the amendment were allowed. The court also considered whether the limitation defence was substantive and whether it was within the scope of the original pleadings. The key issue was whether permitting the amendment would unfairly prejudice the plaintiff or if justice required the amendment to be allowed.

The court ultimately found that the amendment would significantly prejudice the plaintiff, who had been unaware of the limitation defence until the day of trial. The plaintiff had not had an opportunity to prepare a response to the new defence, which was fundamentally different from the original defence. The court concluded that it was not just and equitable to allow the amendment. Therefore, the application to amend the defence was dismissed, and the trial proceeded on the original pleadings.

The court ordered that the amendment to the defence be refused, and the trial proceeded on the original pleadings. The defendant was unable to rely on the limitation defence, and the matter proceeded to a determination of liability and quantum of damages.

Orders