Gilford v Freshmore (Vic) Pty Ltd
[2012] VSC 191
•15 May 2012
| 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, and referred generally to ‘[i]njury to the lumbar spine requiring repeated surgical treatment’ (emphasis added). He sought a serious injury certificate in respect of both physical and psychological injury, and in respect of both pain and suffering and loss of earning capacity.
The application was accompanied by a number of documents, including the plaintiff’s affidavit referred to above, which described his return to work, gradual return to heavy duties, further back and leg pain after that time, and need for repeated surgical treatment.
The application also annexed a copy of Mr de la Harpe’s report dated 22 July 2010, in which he recounted the history of the plaintiff’s presentation to him and the consequent three back operation. In the course of his report, Mr de la Harpe recorded that:
(1) The plaintiff’s first back operation was successful. Mr de la Harpe advised him, however, that he should not go back to his previous occupation as a steel fixer, but should endeavour to do more sedentary work.
(2) The Plaintiff told him on 4 December 2006 that, about six months before:
[while] doing the same job that he was doing in steel construction … he suffered a recurrence of left leg pain. The pain was escalating and he felt he could not go on much further.
(3) When he reviewed the plaintiff again on 31 October 2010, after the second surgery, the plaintiff informed him that his back felt well. However, Mr de la Harpe noted:
I noticed he has not been allowed to return to the modified duties we prescribed. He has been lifting and doing repetitive bending and twisting at work. I stressed that I didn’t [think] this was a good idea given the two surgeries he had undergone on his lumbar spine.[1]
[1]Emphasis added.
(4) He performed the second operation on 2 January 2007. The plaintiff did “quite well” following surgery. He again advised the plaintiff that he should not return to manual labour:
There should be no lifting of over 5-10 kg, no repetitive bending or twisting and no sitting or standing in the one position beyond 30 minutes without a change in posture.
(5) When he next reviewed the plaintiff on 19 April 2010, the plaintiff told him that he was doing ‘reasonably heavy duties at work’. The plaintiff complained of unacceptable left leg symptoms. Following an MRI scan, approval was given to perform further surgery, and the third operation took place on 1 June 2010.
The application also annexed a draft statement of claim. The draft statement of claim alleged the occurrence of injuries in the course of the plaintiff’s employment on 11 July 2003. It did not allege any aggravation of those injuries as a result of further events after that time. Nor did it allege that the plaintiff suffered any further injury as the natural and probable consequence of the initial injuries.[2] However, the particulars of injury again referred to back injuries ‘requiring repeated surgical treatment’.
[2]cf. Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 528-9; Harvey v Methodist Ladies College [2008] VSC 425, [14]; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56, [39].
Based on the material contained in and accompanying the application, an agent for the Victorian WorkCover Authority granted the plaintiff a serious injury certificate on 16 December 2010. The material parts of the certificate are in the following form:
(a)[The agent] is satisfied that the claimed injury referred to in paragraph 8 of the proposed Statement of Claim …is a serious injury within the meaning of Section 134AB(38)(b)(i) and (ii) of the Act; and
(b)… consent is given pursuant to Section 134AB(16)(a) for [the plaintiff] to bring proceedings for the recovery of damages in relation to the injury alleged to have occurred in the circumstances referred to in paragraph 3 of the said Statement of Claim.
The plaintiff then commenced proceedings in this Court, substantially in the form of the draft statement of claim accompanying the application. In paragraph 3 of the statement of claim, the plaintiff alleged the occurrence of a specific incident occurring on 11 July 2003, as a result of which he sustained the initial injuries. In the particulars to paragraph 8 of his statement of claim, he referred to the initial injuries ‘requiring repeated surgical treatment’. He did not allege he had suffered further injury, or aggravation of the initial injuries, as a result of further workplace activities. Nor did he allege further injury as the natural and probable consequence of the initial injuries.[3]
[3]Ibid.
During 2011, statutory conferences were held, statutory offer and counter-offer were made, pleadings were closed, interrogatories asked and answered and the proceeding fixed for trial.
A mediation was held in February 2012.
By application made 28 March 2012, the plaintiff applied to amend his statement of claim to include a further allegation:
3AFurther to paragraph 3 hereof, the plaintiff sustained further injury (‘the further injuries’) to his lower back during the period from 2004 until May 2010 when he was required by the defendant to engage in an excessive amount of bending, lifting and twisting in the course of his employment at a time when the defendant knew or ought to have known
(i)that the plaintiff was suffering or had suffered from a condition in his low back; and/or
(ii)that the plaintiff was liable to suffer further injury by way of aggravation of the injuries if he engaged in work requiring him to engage in bending, lifting and twisting. (Emphasis added).
On 16 April 2012, the plaintiff’s application for amendment was dismissed by an associate justice. The associate justice held that the serious injury certificate was ‘clear on its face, referring expressly to the injuries referred to in the draft statement of claim.’ On this basis, it was determined that the further injuries were not within the ambit of the certificate and, accordingly, that the proposed amendments were futile; as the plaintiff had no right to bring proceedings for injuries outside the terms of the certificate.
The plaintiff appeals against the associate justice’s decision.
The plaintiff contends that the principles to be applied were summarised by J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[4] After reviewing the relevant statutory provisions and prior authority, his Honour stated:
[4][2010] VSC 260.
63I think it possible to draw the threads of these authorities together in the following way:
(1)By the grant of a certificate a worker will have established that he or she has sustained compensable injury and that such injury is a serious injury. The existence of a serious injury permits the court to entertain the worker’s common law claim for damages;
(2)The determination of the Authority that an 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 the part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;
(4)Where an issue at an interlocutory stage arises concerning the effect of a certificate and the ability of the worker to maintain his or her common law claim or a suggested limit on the ambit of that claim then in determining whether part or all of the claim is competent, a court is entitled to look at the material provided to the Authority as part of the s 134AB application;
(5)An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that – interlocutory, not final. An order striking out part or all of a worker’s common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself. Similarly, in the case of amendment, absent some other consideration ... unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.[5]
[5]Ibid, [63]. Emphasis added.
The plaintiff contends that a fair reading of the material provided with the serious injury application demonstrates that he was seeking a certificate for both the initial injuries arising from the incident at work on 11 July 2003, as referred to in his affidavit and draft statement of claim, and also for the further injuries resulting from the activities engaged in by him after his return to work following his first back surgery. Counsel for the plaintiff emphasised the references in the application and annexed documents to the plaintiff requiring ‘repeated surgical treatment’. On this basis, counsel contended that the reference in the certificate to a satisfaction that the plaintiff has a serious injury includes all of the plaintiff’s back injuries as described in his affidavit and Mr de la Harpe’s report.
For the following reasons, I do not accept the plaintiff’s contentions.
First, the plaintiff’s claim in the proceeding is for common law damages for injury suffered in the workplace. Section 134AB of the Act establishes a limited scheme for the commencement and prosecution of such proceedings.[6] There are a number of ‘gateways’ enabling such proceedings. In this proceeding, the plaintiff relies upon the serious injury certificate granted to him under s 134AB(16)(a) of the Act, as referred to above.
[6]Sub-sections 134AB (1) and (2)
Second, s 5 of the Act defines ‘injury’ to include ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury’. For the purposes of the Act, a physical injury is any ‘physiological change to a body part’.[7]
[7]Grech v Orica Australia Pty Ltd (2006) 14 VR 602, 615 per Ashley JA (Buchanan and Chernov JJA agreeing).
Third, the coherent scheme of Part IV of the Act requires that injuries which occur on different dates should be assessed chronologically by date of injury.[8] This includes assessment of injuries for the purposes of s 134AB of the Act.[9] Accordingly, having regard to the inclusive definition of ‘injury’, an aggravation of a pre-existing injury must be assessed separately, and must be classified as itself constituting a serious injury, before one or more of the gateways to obtaining authority to commence a common law action for damages is opened.[10] This means that:
[8]Section 91(7)(b).
[9]Section 91(7A)(a); 104B(2)(c)(ii).
[10]Petkovski v Galletti [1994] 1 VR 436, 443-4; Guppy v Victorian WorkCover Authority [2010] VSCA 164, [18]-[19]; AG Staff Pty Limited v Filipowicz [2012] VSCA 60, [26]-[35].
(1) a court must not aggregate the consequences of separate injuries, including aggravations, arising out of separate incidents in order to satisfy the serious injury requirement;[11]
(2) proceedings commenced pursuant to a serious injury certificate under s 134AB(16)(a) must be limited to the injury that has been certified to be a serious injury in the certificate[12];
(3) certification in respect of a particular injury does not enable a worker to bring a common law claim in respect of any other injury.[13]
[11]Ibid.
[12]Harvey v Methodist Ladies College [2008] VSC 425; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSC 56.
[13]Ibid.
In Georgopolous v Silaforts Painting Pty Ltd & Ors,[14] Kaye J considered a serious injury certificate in respect of psychological injuries but not physical injuries. The plaintiff contended that he was entitled to claim damages for physical injuries. It was contended on behalf of the plaintiff in that case that a plaintiff who receives a serious injury certificate is not, in proceedings subsequently commenced on the authority of the certificate, confined to claiming damages for the injuries which have been certified to be serious injuries. Although commenting that aspects of that contention had ‘some attraction’, and would avoid ‘artificial consequences’,[15] Kaye J rejected the contention.[16] His Honour expressly concluded that a plaintiff who has satisfied one of the gateways for commencing a common law action for damages as a result of a workplace injury ‘is only entitled to plead, and rely upon, such injury or injuries as have been held, certified or deemed to be a serious injury or injuries as defined by s 134AB [of the Act]’.[17]
[14][2012] VSC 56.
[15]Ibid, [36]–[38]. Sentiments with which I agree.
[16]Ibid, [14]-[40].
[17]Ibid, [40].
In reaching this conclusion, Kaye J gave express consideration to the decision of J Forrest J in Kruisselbrink, and stated that the reasoning in Kruisselbrink and other cases to like effect supported his construction of the Act.[18] I agree with and adopt the reasoning of Kaye J.
[18]Ibid, [34]
In this case, the serious injury certificate defines the injury for which consent is given; by reference to ‘the injury alleged to have occurred in the circumstances referred to in paragraph 3 of the [draft statement of claim submitted with the serious injury application]’. From that description of ‘the injury’, it is clear that consent was not given for common law proceedings in respect of any further injury suffered by the plaintiff at his workplace, including any aggravation of the initial injuries. Accordingly, the fact that the plaintiff’s serious injury application in this case referred to aggravating circumstances and their consequences, including the need for repeated surgical treatment, does not affect the plain meaning of the serious injury certificate. That certificate was limited to the consequences of the initial injuries suffered by the plaintiff at work on 11 July 2003.
For the above reasons, the appeal should be dismissed. It would be futile to allow the proposed amendment. If the plaintiff wishes to pursue a claim for aggravation of the initial injuries, he must first obtain authority to do so under one of the gateways available under the Act. It may be that an alternative form of amendment, alleging that the plaintiff suffered further injury as the natural and probable consequence of the initial injuries would be permitted. However, no such amendment has been put forward, and I have not heard argument on that issue.
Conclusion and orders
In the affidavit in opposition to the amendment application, the solicitor for the defendant alleged ‘significant prejudice’ to the defendant if the amendment were allowed. If the amendment were to be allowed, orders were sought vacating the trial date and for amended pleadings, discovery, interrogatories and mediation. Notwithstanding that the amendment was refused, the trial date was vacated by the associate justice. It may be that the trial date was vacated because of this appeal. In any event, having regard to certain answers to interrogatories, and the form of the pleading to date, there may be merit in allowing further interrogation and discovery. I will hear the parties as to the form of directions to be made, so as to avoid the cost and inconvenience of a further directions hearing before an associate justice, and to ensure that the proceeding can proceed to trial expeditiously.
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