Bozic v Steggles Limited (Ruling)
[2018] VCC 1357
•30 August 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-02790
| DRAGO BOZIC | Plaintiff |
| v | |
| STEGGLES LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 16 and 17 May 2018 | |
DATE OF RULING: | 30 August 2018 | |
CASE MAY BE CITED AS: | Bozic v Steggles Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1357 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application by defendant to stay or summarily dismiss application for leave on grounds of abuse of process
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB(16)(b); Occupational Health and Safety (Manual Handling) Regulations 1999; Manual Handling Code of Practice 2000; Occupational Health and Safety (Plant) Regulations 1995
Cases Cited:Alcoa of Australia Ltd v McKenna (2003) 8 VR 452; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232; Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Ruling: Defendant’s oral application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Petersons Lawyers |
| For the Defendant | Mr A Moulds QC with Ms G Cooper | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for an injury suffered by him at work as a result of the plaintiff pushing a stack of tubs of chicken pieces with his hands and left knee on 20 January 2000, when he experienced sharp pain in his left knee (“the 2000 left knee injury”).
2 Counsel for the defendant submitted that the plaintiff’s serious injury application in respect to the left knee injury is an abuse of process and ought to be dismissed. The basis for the submission is that in 2012, the plaintiff brought and settled a claim for injury arising out of the same work process (“the 2010 neck and right shoulder injury”). Even if leave were granted, no damages would be recoverable. In such a situation, leave ought not to be granted.
3 Counsel for the plaintiff submitted that the plaintiff’s serious injury application should proceed.
Background
4 The plaintiff is aged fifty-three years. He emigrated from Bosnia in 1995 and commenced work with the defendant in 1997 as a process worker.
5 On or about 20 January 2000, the plaintiff suffered a left knee injury whilst working on the process line. The plaintiff was required to stack and move tubs/pallets full of chicken pieces that were stacked up to eight tubs high. The tubs weighed approximately 24 kilograms each and he had to use both hands and his left knee to push the stacked tubs. While pushing a stack of eight tubs/pallets, he felt a sharp pain in his left knee, thereby causing and/or predisposing the plaintiff to suffer an injury.
6 The plaintiff deposed that he reported the injury to the defendant. The plaintiff attended a general practitioner, underwent an MRI scan[1] and received advice from Mr John Skelley, orthopaedic surgeon, regarding an arthroscopy. The plaintiff elected not to undergo the arthroscopy at the time. The plaintiff deposed that he always had ongoing left knee soreness which gradually worsened over the years.[2]
[1]Plaintiff’s Court Book (“PCB”) 39-41
[2]PCB 23
7 In March 2000, the plaintiff submitted a WorkCover Claim Form for the left knee injury.[3] The defendant submitted a request for investigation. The plaintiff returned to work with the defendant, initially on light duties, and, subsequently, resumed his normal duties.
[3]PCB 28
8 In November 2010, the plaintiff sustained a neck and right shoulder injury while manually handling heavy tubs of chicken, and in particular, lifting a tub of chicken from the ground up to a bench (“the 2010 neck and right shoulder injury”, the second injury).
9 The plaintiff had surgery in June 2011 for the neck and right shoulder injury and did not return to work until October 2011 on light duties.[4]
[4]PCB 26.9
10 In 2012, the plaintiff completed a Form A application in respect to the neck and right shoulder injury. The claim was pleaded on a course of employment plus specific incident basis. The plaintiff sought consent from the Victorian WorkCover Authority to commence proceedings for the recovery of damages for pain and suffering and loss of earning capacity in relation to the 2010 injury to his neck and right shoulder. On or about February 2013, the claim was resolved, a Release signed, and money paid without proceedings being commenced.
11 In early 2013, the plaintiff was retrenched from work with the defendant.
12 Between late 2013 and 2017, the plaintiff returned to see Mr Skelley in respect of his left knee injury. The plaintiff underwent further investigations and in August 2014, underwent an arthroscopy and partial meniscectomy on the left knee.
13 In December 2017, Mr Skelley reported that an MRI scan dated 2 November 2017 showed the development of degenerative arthritis in the lateral compartment of the knee, as well as the previous partial resection of the meniscus on the medial side of the knee. It was Mr Skelley’s view that the osteoarthritis in the left knee will progress slowly with time and that the plaintiff will require a knee replacement eventually.
The current proceeding
14 On 2 February 2017, the plaintiff completed a Form A application by which he sought consent from the Victorian WorkCover Authority to commence proceedings for the recovery of damages for pain and suffering only in respect of the 20 January 2000 left knee injury
15 In June 2017, the plaintiff commenced this proceeding by filing an Originating Motion seeking leave to commence proceedings for the recovery of pain and suffering damages only in respect of the 2000 left knee injury.
16 The particulars of negligence relied upon are:
(a) Failing to provide a safe system of work which did not subject the plaintiff to undue repetitive strain;
(b) Failing to provide adequate manual or mechanical assistance to the plaintiff when performing his work.
17 The particulars of injury are:
(a) Injury to the left knee/leg;
(b) Restriction;
(c) Limitation of movement.
18 The defendant rejected the claim and pleaded in its Draft Defence that:
(a) The cause of action was sued on in the 2012 application;
(b) The 2012 application resulted in the payment of damages by the defendant to the plaintiff and the defendant relies on accord and satisfaction;
(c) The 2017 claim is barred by s134AB(21) of the Act.
19 The application came on for hearing on 16 May 2018. On 17 May 2018, the defendant applied orally for an order that the proceeding be dismissed.
The Defendant’s position
20 Counsel for the defendant submitted that the serious injury application was an abuse of process and ought to be dismissed.
21 In particular, Counsel for the defendant relied upon:
(a) the decision of the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd & Ors (“Georgopoulos”);[5]
[5][2012] VSCA 179
(b) the Release of the 2012 claim;
(c) the “once and for all” rule.
The 2012 claim
22 In November 2010, the plaintiff was lifting a tub of chicken at work when he injured his neck and right shoulder. The plaintiff alleged that the injury was caused on 10 November 2010 and over the course of his employment with the defendant.
23 In September 2012, the plaintiff sought consent from the Victorian WorkCover Authority to commence proceedings for the recovery of damages for both pain and suffering and loss of earning capacity in relation to the 2010 injury to his neck and right shoulder.
24 The plaintiff relied upon a Draft Statement of Claim which was before the Court. In that document, the plaintiff alleges –
“… as a consequence of the excessively heavy, awkward and repetitive duties that the Plaintiff was required to perform using the machines on the auto cut and hang line and the manual handling of heavy tubs of chickens, and in particular in or about November, 2010 when lifting a tub of chicken from the ground up to a bench the Plaintiff thereby suffered injury to his right shoulder … .”
25 The particulars of negligence included:
(a) Failing to provide a safe system of work;
(b) Requiring the plaintiff to perform heavy lifting and awkward and repetitive work;
(c) Failing to adequately instruct or supervise its employees in the performance of their duties;
(d) Exposing the plaintiff to unnecessary risk of injury in the course of performing his duties;
(e) Failing to provide adequate manual or mechanical assistance to the plaintiff when performing his work;
(f) Failing to adequately undertake risk assessment or to act on the results of risk assessments;
(g) Failing to undertake control of risk;
(h) Failing to comply with Occupational Health and Safety (Manual Handling) Regulations and/or the Manual Handling Code of Practice and/or the Occupational Health and Safety (Plant) Regulations of the State of Victoria;
(i) Failing to take reasonable care for the safety of the plaintiff;
(j) Further, and in the alternative, the plaintiff’s injuries occurred by reason of the breach by the defendant of its duties under the Occupational Health and Safety (Manual Handling) Regulations and/or the Manual Handling Code of Practice and/or the Occupational Health and Safety (Plant) Regulations.
26 The particulars of injury include:
(a) Right shoulder injury;
(b) Neck injury;
(c) Restriction;
(d) Limitation of movement;
(e) Psychiatric injury.
27 The Draft Statement of Claim for the 2010 injury does not refer to a left knee injury.
28 On or about February 2013, the claim for the 2010 neck and shoulder injury was resolved, a settlement was made, and a Release signed without proceedings being commenced.
Is the Defendant’s current application premature?
29 The onus is upon the defendant to persuade the Court that this proceeding is an abuse of process. A proceeding should not be dismissed without adjudication as an abuse of process other than in the clearest situation.
30 In Alcoa of Australia Ltd v McKenna,[6] the employer wished to resist the application on the basis that the injury did not fall within s135A(2) of the Act. In that case, the majority of the Court of Appeal accepted that the evidentiary burden of making out that case fell upon the employer. Chernov JA used the phrases “absolutely hopeless” or “bound to fail”.
[6](2003) 8 VR 452 at paragraph [19]
31 The submission of the plaintiff’s Counsel was that at this stage, it cannot be said that the question as to whether the plaintiff could maintain a damages action for the injury to his left knee is “absolutely hopeless” or “bound to fail”. Accordingly, it cannot be said that bringing this proceeding is an abuse of process.
32 There is insufficient evidence on the material before me to determine the preliminary issue. For example I would have to determine whether or not the defendant would have a good defence to the proposed damages claim for the left knee injury. That would require me to hear evidence. I would need to know how the negligence claim is to be put in respect to damages for the left knee injury. Further, how that was related to the now resolved neck and shoulder claim. I was not referred by either counsel to the medical reports included in the Court Books. I have briefly reviewed some of these reports. I note that medical reports pertaining to the neck and shoulder injury make no reference to the earlier knee injury.
33 I formed the view that there was essentially insufficient evidence to definitely conclude that the proceeding was “absolutely hopeless” or “bound to fail”. I accept the submission of Counsel for the plaintiff, that the serious injury application should be heard. If it is successful and proceedings are issued, the question of whether or not the prior settlement provides the defendant with a defence can be determined.
Does the decision of the Court of Appeal in Georgopoulos v Silaforts Painting provide a defence to this claim?
34 In Georgopoulos,[7] the plaintiff initially suffered physical injuries (organic injuries). He later suffered psychological injuries. Inter alia, the case concerned whether the worker was able to claim for the organic and the psychological injuries or just the psychological injuries (the organic injuries being time barred) and how the injuries should be assessed in damages. In Georgopoulos, the plaintiff’s injuries were causally linked: the psychological injuries were claimed to be a direct result of the organic injuries. Additionally, both the organic and the psychological injuries arose from a single incident.
[7](2012) 37 VR 232
35 For the purposes of the Act, the Court of Appeal discussed a series of steps to be followed in serious injury applications, namely that:
(a) a “compensable injury” needed to be identified (there may be more than one);
(b) a serious injury is the consequential impairment (sequelae) of a compensable injury;
(c) whether the compensable injury is a “serious injury” is decided through the “gateway” provisions set out in the Act;
(d) if one of the gateways is established;
(e) compensation is payable on all compensable injuries (the injuries are not disaggregated and a “whole person impairment” assessment is conducted).
36 The Court of Appeal held that the worker in Georgopoulos was able to claim for the psychological injuries, despite those injuries arising chronologically as second in time and a claim not being made for the organic injuries (which were statute barred).
37 However, in assessing damages, both the organic and the psychological injuries were assessed to determine the “whole person impairment”. The Court held that:
“… 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.”[8]
[8]Georgopoulos (ibid) at paragraph [5]
38 The Court construed the purpose of the Act as providing gateways for compensation and if one of the gateways in relation to one compensable injury was met, effectively all compensable injuries were then compensated in damages.
39 The issue before the Court in Georgopoulos was whether the plaintiff could recover damages in respect to other injuries arising out of the same incident or circumstances. In the present case, in the Proposed Statement of Claim, the claim alleges as follows:
“(4)The Plaintiff suffered injury while working on the process line where he was required to stack and move tubs/pallets full of chicken pieces that were stacked up to eight tubs high, the tubs weighed approximately 24 kilograms each he had to use both hands and his left knee to push the stacked tubs. On or about the 20th January, 2000 while pushing a stack of tubs/pallets he felt a sharp pain in his left knee thereby causing and/or predisposing the Plaintiff to suffer injury as set out below.”
40 In Georgopoulos, the plaintiff’s organic and psychological injuries arose from or out of one specific incident. This can be distinguished on its facts from this case where there seems to be less of a direct causal connection between the current claim relating to the 2000 left knee injury and the 2012 claimed injuries pertaining to the neck and right shoulder. Further, they appear to arise out of separate incidents.
41 In the present case, based on the material before me, the plaintiff sustained a left knee injury due to specific incident of manual handling in or about January 2000 where he was pushing a stack of eight tubs. Subsequently, in 2010, the plaintiff sustained a neck and right shoulder injury when he was lifting a tub of chicken from the ground up to a bench. The neck and right shoulder injury was pleaded in the 2012 claim as a specific incident and course of employment injury; however, the manifestation of the injury was following the incident in November 2010.
42 Whilst the plaintiff’s 2000 and 2010 injuries were sustained due to manual handling, I take the view that they were two separate incidents resulting in separate organic injuries and as such are two separate potential causes of action.
43 I accept that in the present case, the question before this Court is whether the plaintiff’s injury arises out of the incident on 20 January 2000. The following documents support the plaintiff’s position.
44 In the Originating Motion, the prayer for relief provides:[9]
“THE PLAINTIFF seeks Leave … to bring proceedings and claim against the Defendants … for injuries suffered on or about the 20th January, 2000 while pushing a stack of tubs/pallets the Plaintiff felt a sharp pain in his left knee … .”
[9]Plaintiff’s written submissions, page 4
45 The affidavit in support of the plaintiff sworn 2 February 2017 provides:[10]
“I had previously suffered injury to my left knee on the 20th January 2000. On that date I was working on the line. I was required to move tubs of chicken pieces. The tubs were stacked up to eight high and I used both my hands and left knee to push the stack of tubs. In doing this I suffered a sharp pain in my left knee.”
[10]PCB 22
46 The plaintiff’s initial Worker’s Claim for Compensation dated 3 March 2000, which stated in answer to the question when the injury/condition occurred, said 20 January 2000. The Notice accepting liability for no fault benefits for this injury identified the “injury date” as 20 January 2000.
47 The medical reports of the following doctors who have examined the plaintiff refer to the injury occurring on 20 January 2000:
· The reports of Mr Skelley dated 24 March 2000[11], 19 October 2013,[12] 18 May 2015,[13] 26 February 2014[14] and 11 July 2017[15]
[11]PCB 60 - 61
[12]PCB 63
[13]PCB 64
[14]PCB 72
[15]PCB 75
· The report of Mr Thomas Kossman of 20 November 2017[16]
[16]PCB 96
· The report of Mr Gerald Moran of 21 March 2000[17]
[17]PCB 98
· The report of Mr Iain McLean of 28 January 2015[18]
[18]PCB 117
· The report of Dr David Fish of 19 October 2015[19]
· The report of Dr Andrew Miller of 29 January 2016.[20]
[19]PCB 126
[20]PCB 131
48 Although the 2000 and 2012 injuries sustained by the plaintiff arose from manual handling, they arose from distinct incidents at separate periods of time in the plaintiff’s employment with the defendant. This is distinguishable from Georgopoulos, where the plaintiff’s organic and psychological injuries arose from or out of one specific incident, of falling from a scaffolding.
Does the Release of the 2012 claim extend to include the 2000 cause of action?
49 The plaintiff submits that the Release pertains to the specific instance of lifting, the 2012 claim. The defendant submits that the wording of “the claim” includes the general process of work which the plaintiff was involved in and as such, it encompasses the 2000 left knee injury.
50 In Grant v John Grant & Sons Pty Ltd,[21] the High Court outlined that the general words in a Release will be interpreted to apply to what was in the contemplation of the parties. Based on the material before me, the Release encompassed the plaintiff’s neck and right shoulder injury. At the time of the Release being signed, the matters in contemplation of the parties were a neck and right shoulder injury which resulted from heavy awkward and repetitive duties which the plaintiff was required to perform using machines, the manual handling of heavy tubs of chicken and in particular, in November 2010, when lifting a tub of chicken from the ground up, the plaintiff sustained injury to his right shoulder
[21](1954) 91 CLR 112
51 Based on the medical material before me, when the release was signed, the assessment of the plaintiff’s neck and shoulder injury did not contemplate a left knee injury. Whilst the plaintiff had sustained a knee injury in 2000, the plaintiff was able to continue his work and at the time of the release being signed, the left knee injury had not, at that stage, been identified as a potential serious injury. I note that the plaintiff did not return to consult Mr Skelley until late 2013. The plaintiff subsequently underwent an arthroscopy in August 2014.
52 Further, the Draft Statement of Claim pertaining to the 2012 claim does not refer to a left knee injury.
53 Accordingly, I take the view that given the broad terms of the release and based on the medical material before me, the Release pertaining to the 2012 claim does not encompass the 2000 left knee injury.
54 In view of my analysis of the Release relating to the 2012 claim, I take the view that the plaintiff is not precluded from bringing a potential cause of action for the 2000 left knee injury as it is a separate potential cause of action to the 2012 claim relating to the neck and shoulder injury. Accordingly, the once and for all rule is not applicable in this case.
55 Accordingly, I propose to allow the plaintiff’s serious injury application to progress.
56 I dismiss the defendant’s oral application.
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