Carman v VWA (Ruling No 2)
[2018] VCC 845
•30 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-00418
| ANNA CARMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 & 30 May 2018 | |
DATE OF RULING: | 30 May 2018 | |
CASE MAY BE CITED AS: | Carman v VWA (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 845 | |
REASONS FOR RULING
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Subject: Accident compensation
Catchwords: Limits of grant under s134AB(16)(b) of the Accident
Compensation Act 1985; Amendment of pleadings
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Georgopoulos v Silaforts Painting Pty Ltd and Others (2012) 37
VR 332; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC
340; O’Neill v T.D. Williamson Aust Pty Ltd [2008] VSC 398; Harvey v Methodist Ladies College [2008] VSC 425; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Kaltsis v Ice Design Pty Ltd [2015[ VCC 28; Brambles v Wail [2002] VSCA 150; Papercorp Pty Ltd v Nicolaou [2006] VSCA 143
Ruling: Leave to amend granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison QC with Mr E. Makowski | Ryan Carlisle Thomas |
| For the Defendant | Ms R. Annesley QC with Mr M. Clarke | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff seeks leave to amend the statement of claim by enlarging the circumstances in which her injury was said to occur. The circumstances of injury were initially pleaded as occurring in the course of her employment with Tank Securities Corporation Pty Ltd as follows:
“4. On or about 20 June 2009 (“the said date”) in the course of her said employment the Plaintiff was required to apply cling-wrap and shrink‑wrap to safes at the premises (“the work”).
5. In order to perform the work, the Plaintiff was required (inter alia) repeatedly to squat and rise from a squatting position and to pull forcibly on the wrapping material to apply it to each safe.
6. As a result of performing the work on the said date, the Plaintiff sustained injury.”
2 In the proposed amendment the plaintiff seeks to amend paragraph 5 to read as follows:
“In order to perform the work, the Plaintiff was required (inter alia) to handle and manoeuvre heavy safes from one pallet to another and repeatedly to squat and rise from a squatting position and to pull forcibly on the wrapping material to apply it to each safe.”
3 The defendant opposes the amendment on the basis that the leave granted pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act”) to claim damages was limited to the circumstances of injury relied upon in the serious injury application, and the proposed amended proceeding seeks to enlarge the plaintiff’s claim beyond the scope of statutory leave entitling the plaintiff to recover damages.
4 The plaintiff submits that leave should be granted as the grant of leave is in respect of the plaintiff’s right knee injury and it is the injury itself rather than the precise circumstances in which it occurred which governs the statutory entitlement to recover damages.
5 Mr Harrison QC, who appeared with Mr Makowski on behalf of the plaintiff, submitted that the grant of leave was in respect of the injury which provided the gateway for the recovery of damages.
6 He further submitted that the temporal relationship between the activity set out in the proposed amended statement of claim and the original pleading was such that the plaintiff’s entitlement to recover damages should not be unduly restricted provided that the pleading related to the injury that was found to be a serious injury for the purposes of the legislation.
7 The scope of a potential damages claim was examined by the Court of Appeal in Georgopoulos v Silaforts Painting Pty Ltd and Others.[1] The Court there stated:
“… a worker may recover damages in respect of all the components of an injury which is compensable pursuant to s 82(1) of the Act if the compensable injury results in consequential impairment of the kind defined as serious injury by the Act.”[2]
[1][2012] VSCA 179
[2]Ibid at (3)
8 The Court also stated in Georgopoulos the following remarks concerning the Minister’s Second Reading Speech:
“… the amendments were designed to restore the rights of injured workers, provided that one or other of the serious injury gateways was satisfied. The emphasis was not upon what injuries might be litigated at trial but rather the gateways to be accessed by the worker.”[3]
[3]Ibid at (35)
9 I note that Georgopoulos was a case where the plaintiff’s solicitors had issued an application for leave based upon a physical injury which failed to comply with the strict time limits in the Act. This application was struck out. A further application, based upon psychiatric injury but making reference also to the original physical injuries, was later lodged and a serious injury certificate was consented to, but limited only to the psychiatric injuries.
10 Following a detailed consideration of the various sub-sections of section 134AB the court concluded that once serious injury had been established via one of the nominated gateways, the plaintiff was at liberty to claim damages at common law in respect of compensable injury rather than be restricted to claim damages only in respect of the actual injury which was found to constitute the statutory definition of serious injury.
11 I was referred by both counsel to authorities of Ronchi v Alcoa Portland Aluminium Pty Ltd,[4] O’Neill v T.D. Williamson Aust Pty Ltd,[5] Harvey v Methodist Ladies College[6] and Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[7] These are all decisions of single justices of the Supreme Court. I was also referred in argument to a recent analysis of those authorities made by His Honour Judge Parrish in this court in Kaltsis v Ice Design Pty Ltd.[8]
[4][2007] VSC 340, Osborn J
[5][2008] VSC 398, Cavanough J
[6][2008] VSC 425, Beach J
[7][2010] VSC 260, J Forrest J
[8][2015[ VCC 28
12 Ronchi was concerned with a proceeding commenced under and earlier version of the Act whereby leave had been granted pursuant to section 135A(4) to commence a proceeding in respect of a serious injury found to have occurred in 1995.
13 The plaintiff had proposed to base his claim upon a course of employment extending from December 1992 until 12 November 1997. The defendant sought to limit the plaintiff’s claim to the incidents occurring in 1995, which had been the subject of the earlier serious injury application.
14 The court referred to a number of earlier authorities including the Court of Appeal’s decision in Brambles Limited v Wail[9] where the court stated:
“By its very nature, a preliminary finding by a judge that the applicant for leave has sustained a ‘serious injury’ arising out of his employment does not finally determine the rights of the parties. It is merely a preliminary step along the way to establishing those rights. It does not prevent the defendant, at the trial, from challenging the seriousness of the injury, or from seeking to show that it did not arise out of the plaintiff’s employment, or that such employment did not significantly contribute to it. The focus of the leave application is whether, in the opinion of the judge asked to grant leave, the injury is a ‘serious’ one’’ within the meaning of s.135A(19).” (My emphasis)[10]
[9][2002] VSCA 150
[10]Ibid at [18]
15 The court referred to further appellate authority in Papercorp Pty Ltd v Nicolaou[11] where it was stated:
“When leave is given to bring a proceeding under s.135A, it is in respect of ‘the injury’ which was caused in compensable circumstances by the negligent conduct of the employer. True it is that a proceeding may only be brought if the injury is in its consequences a serious injury, but whatever the mechanism by which it is recognised as being a serious injury … the consequences of compensable injury in respect of which damages are recoverable are not delimited.”[12]
[11][2006] VSCA 143
[12]Ibid at [31]
16 His Honour then proceeded to examine the material which had been presented in the serious injury application. On the basis of such an analysis His Honour then stated:
“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 the ongoing employment in 1995.”[13]
[13]Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340 at [49]
17 On that basis His Honour granted the defendant’s application and limited the common law action to incidents occurring in 1995 rather than the broader claim which had been proposed by the plaintiff.
18 In O’Neill v T.D. Williamson Aust Pty Ltd the plaintiff sought an amendment to the statement of claim which effectively enlarged the time period in which a plaintiff was alleged to have suffered psychological injuries. In that case the plaintiff had been assessed by a Medical Panel to have a whole person impairment of 35 per cent, which was therefore deemed to be a serious injury. The documentation provided to the Medical Panel included a claim form completed by the plaintiff noting her first awareness of injury as “approx. Jan 2001.” The amendment proposed by the plaintiff in that case sought to rely in addition on material including correspondence received by the plaintiff in 2002.
19 The court in O’Neill noted that there was no argument raised by the defendant to the effect that a plaintiff was limited to precisely the draft statement of claim that was delivered with the section 134AB(4) and (5) application. His Honour went on to say:
“The defendant acknowledged, I think, that any amendment that would ordinarily be proper was permissible as long as it did not raise an alleged injury or an alleged cause of injury that fell outside the legitimate subject matter (or, alternatively, the actual subject matter) of the assessment referred to in s 134AB(15).”[14]
[14]O’Neill v T.D. Williamson Aust Pty Ltd [2008] VSC 398 [105]
20 His Honour then went on to state:
“All of the alleged causes of which she seeks to complain appear to be related to each other, in that they allegedly arise out of an inter-connected course of conduct of the employer relating to its demands and concerns about the plaintiff’s performance in the workplace.”[15]
[15]Ibid at [109]
21 Accordingly His Honour went on to grant leave for the plaintiff to amend the statement of claim as had been proposed.
22 In Harvey v Methodist Ladies College[16] the court permitted an amendment to the statement of claim to allege injury in the course of employment rather than relying upon an injury occurring on a particular specified date. It was there stated:
“… there is nothing impermissible, in appropriate circumstances, in a plaintiff alleging that different aspects of her employment with the defendant were alternative or cumulative causes of an injury in respect of which the plaintiff has been given leave to bring proceedings.”[17]
[16][2008] VSC 425
[17]Ibid at [11]
23 For completeness I should note that the court made reference to a decision of another judge in this court where a similar application to amend had been refused where the trial judge found that leave had been granted under section 134AB(16)(b) in circumstances where:
“… the plaintiff was confined to a cause of action arising from a specific incident, the subject in that case of the incident detailed in the certificate.”[18]
[18]Ibid at [11]
24 Kruisselbrink v Nationwide Maintenance Services Pty Ltd[19] again concerned an application to amend the plaintiff’s statement of claim to involve a period of employment including two separate incidents as a basis for his common law action rather than be limited to one specific incident during that period. The court was critical of the original statement of claim which had failed to properly identify any period of work relevant to the cause of action. Criticism was also directed to the original defence.
[19][2010] VSC 260
25 The proposed amendments identified the work events sought to give rise to the negligent conduct with far greater specificity. The defendant sought to oppose those amendments on the basis that the court had no jurisdiction to hear the plaintiff’s allegations as they did not form part of his original application for serious injury.
26 The court then examined the circumstances in which the serious injury certificate had been granted and was again critical of its terms insofar as it related to the application which had been filed by the plaintiff.[20]
[20]Ibid at [36] to [39]
27 The court conveniently set out a number of principles which are relevant to this type of application.[21] Central to those principles insofar as the present application is concerned are:
“(2) The determination of the Authority that the injury is serious, relates to the injury alone; the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999;
(3) A worker can only, in the common law claim, in establishing liability on part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;”
[21]Ibid at [63]
28 Finally in Kaltsis v Ice Design Pty Ltd[22] His Honour Judge Parrish applied the principles of Kruisselbrink to limit the claim advanced by a plaintiff to the circumstances which had earlier been considered as entitling the plaintiff to a grant of serious injury. The facts in Kaltsis were that the plaintiff had suffered a fall from a ladder in February 2008 and suffered injuries which incapacitated her until late May 2008. The plaintiff had originally made allegations of inappropriate conduct on behalf of the defendant following her return to employment and extending up until late February 2009. Her serious injury application was solely based on the development of psychiatric injury in that latter period.
[22][2015] VCC 28
29 The application before His Honour Judge Parrish sought to amend the proceeding to broaden the allegations to include the ladder incident, in addition to the subsequent events which had been the basis upon which the serious injury application was pursued.
30 His Honour ultimately ruled in favour of the defendant and limited the plaintiff to the matters arising after her return to work.
31 It is clear that applications such as the one before me require an examination of the circumstances in which the compensable injury was found to be a serious injury. It is also clear from the authorities that a plaintiff is not limited to the precise wording of the proposed or draft statement of claim provided with the serious injury application.
32 In the submissions advanced on behalf of the defendant, Ms Annesley QC, who appeared with Mr Clarke, referred to a number of medical histories in reports relied upon by the plaintiff which noted a history of injury being sustained while cling-wrapping a safe and standing up from a squatted position. Ultimately the plaintiff did not dispute that the precise mechanism of injury was sustained in such a fashion.
33 The plaintiff now seeks in effect to adduce evidence in the common law action to establish that other activities, and in particular the manouvering of safes at or about the time of the shrink-wrapping were implicated in the occurrence of injury for which leave was granted. There is no allegation in the proposed amendment of the statement of claim that the injury to the plaintiff’s knee is in any way modified or enlarged by the proposed amendment to the pleadings.
34 I do not see this case as one akin to Kaltsis where the whole basis of the plaintiff’s claim was changed so as to focus on a completely different event than the one considered in the serious injury application.
35 Ms Annesley QC has carefully set out the medical histories relied upon by the plaintiff in the serious injury application and the limited history of injury provided to them. Ultimately it will be a matter for evidence in the common law proceeding as to whether, or to what extent, the proposed amended statement of claim is successful in relating the compensable injury to the events said to give rise to the claim in damages.
36 I am therefore of the opinion that there is nothing within section 134AB which would preclude the plaintiff being given leave to amend the statement of claim as proposed.
37 I will therefore allow the amendment.
38 I will give leave to the defendant to file and serve an amended defence within 28 days of the filing and service of the amended statement of claim.
39 I reserve leave generally to the parties to apply for any further or consequential orders that may be sought.
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