Gilford v Freshmore (Vic) Pty Ltd - [2012] VSC 191

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2011 01269

WARWICK GILFORD	Plaintiff
v
FRESHMORE (VIC) PTY LTD	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2012
DATE OF JUDGMENT:	15 May 2012
CASE MAY BE CITED AS:	Gilford v Freshmore (Vic) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 191

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ACCIDENT COMPENSATION – Serious Injury Certificate granted to plaintiff – Application to amend Statement of Claim – Whether proposed amended claim within scope of certificate – Application refused – Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Nowicki Carbone
For the Defendant	Mr M Wheelahan SC with Ms M Norton	Minter Ellison

HIS HONOUR:

The plaintiff was employed by the defendant as a steel fixer and leading hand until May 2010.

The plaintiff alleges the following matters:

(1) He sustained injuries to his lower back while lifting a heavy load of reinforced steel at work on 11 July 2003 (the ‘initial injuries’). Later that year, he had the first of three back surgeries. The surgeon was David de la Harpe.

(2) Following the first back surgery, the plaintiff returned to work on light duties. In his affidavit in support of his application for a serious injury certificate, he swore that:

Over an extended period of time of some years I was gradually able to rebuild my work capacity to a point that I was performing my usual work duties again. Unfortunately, as events transpired, my spine was not able to cope with this type of work and I noticed the onset of further problems with sciatic pain extending into my left leg.

(3) As a result of his further problems, the plaintiff obtained medical advice. In November 2006, he had a nerve root injection which did not provide any lasting relief. He returned to Mr de la Harpe, who performed further back surgery on 2 January 2007.

(4) Following the second back surgery, the plaintiff again returned to work. However, by early 2010 he again noticed increasing problems with his back and referred symptoms into his left leg. He returned to Mr de la Harpe for assessment. He had a third back operation on 1 June 2010.

(5) His employment was terminated in July 2010, because it was thought unsafe for him to return to his pre-injury duties. The plaintiff is now 56 years of age. He has limited education, vocational skills which are not suited to sedentary light work, and has few prospects of further employment.

The plaintiff applied for a serious injury certificate under s 134AB(16) of the Accident Compensation Act 1985 (the ‘Act’) on 17 August 2010. In his application, the plaintiff specified a range of lower back injuries, chronic pain and disability affecting his left leg and psychological injury including anxiety and depression. In his particulars of injury, he referred to a range of specific back injuries,…

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: [2012] VSC 191
Decision Date: 15 May 2012

CaseChat Overview and Summary

The parties involved in this case were Gilford and Freshmore (Vic) Pty Ltd. Gilford had applied for and received a Serious Injury Certificate (SIC) following an accident, which entitles him to certain legal benefits, including the ability to bring a personal injury claim. Freshmore (Vic) Pty Ltd was the defendant in this case, and the nature of the dispute was Gilford's application to amend his Statement of Claim to include claims that were not within the scope of the SIC granted to him. The matter was heard in the County Court of Victoria.

The central legal issue in this case was whether the proposed amended claim by Gilford fell within the scope of the SIC granted to him. Specifically, the court had to determine if the proposed amendment was permissible under the statutory framework governing SICs, and if it adhered to the principles established in relevant case law, such as Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56. The court also had to consider the implications of allowing the amendment on the integrity of the SIC process and the rights of the defendant.

The court ruled that the proposed amendment to the Statement of Claim was not permissible. In reaching this decision, the court closely examined the language of the SIC and the principles established in Georgopoulos v Silaforts Painting Pty Ltd & Ors. It found that the proposed amendment sought to include claims that were not contemplated at the time the SIC was granted, and therefore, it fell outside the scope of the certificate. The court emphasised the importance of maintaining the integrity of the SIC process, which includes ensuring that claims are both within the scope of the certificate and fairly adjudicated.

As a result of the court's decision, Gilford's application to amend his Statement of Claim was refused. The court's ruling underscores the importance of adhering to the specific requirements of the SIC process and the need for claimants to ensure that their claims are within the scope of the certificate at the time it is granted. The final orders of the court were that the application to amend the Statement of Claim was dismissed, and the defendant was not required to respond to the proposed amended claims.

Orders