Harrison v Forty-Eighth Snowman Pty Ltd
[2016] VCC 538
•9 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-01695
| JENNIFER HARRISON | Plaintiff |
| v | |
| FORTY-EIGHTH SNOWMAN PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2016 | |
DATE OF JUDGMENT: | 9 May 2016 | |
CASE MAY BE CITED AS: | Harrison v Forty-Eighth Snowman Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 538 | |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985 – allegation of injury arising in the course of employment over many years – plaintiff successful in serious injury application – supporting documents included Draft Statement of Claim – plaintiff issues Writ and Statement of Claim – duration of course of employment pleaded over more years than in Draft Statement of Claim – inexplicable restriction on number of years relied upon contained in Draft Statement of Claim – ultimate Statement of Claim covers entire course of employment – application by defendant to amend Defence so as to preclude plaintiff from relying upon full course of employment – serious injury application had ostensibly proceeded on basis of full course of employment – whether plaintiff’s case should be confined to shorter period set out in Draft Statement of Claim – whether leave to amend Defence should be granted – factors to be considered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms C Kusiak | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D McWilliams | Wisewould Mahony Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application by the defendant to file and serve an Amended Defence, such application being opposed by the plaintiff. The application is made in the context of a proposed jury trial which is fixed for hearing on 28 June next. The plaintiff had previously sought leave to bring proceedings for damages for both pain and suffering and loss of earning capacity, such application being brought pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”).
2 In a Judgment of 18 December 2014, her Honour Judge Lawson gave leave to the plaintiff to bring proceedings for damages. Such leave was given in respect of both pain and suffering and loss of earning capacity. Leave was refused in respect of a physical injury to the left shoulder, but was granted in respect of permanent severe mental or permanent severe behavioural disturbance or disorder.
3 At the heart of the present opposed application to file and serve an Amended Defence are the circumstances in which the plaintiff alleges that she suffered the injury and the difference in the description of those circumstances between what was contained in the proposed or Draft Statement of Claim annexed to the application for leave and what is contained in the Statement of Claim appended to the Writ subsequently issued.
4 Firstly, I shall start my findings of fact, almost all of which are not contentious. I would point out that any findings are for the purposes of this application only.
Factual findings
5 The plaintiff was employed by the defendant as a sewing machinist working on drapes, curtains and theatre backdrops and had been so employed since about 5 July 1999.
6 The plaintiff developed symptoms in the left shoulder in September 2010, undergoing an ultrasound on 1 October 2010 and last working on 5 October 2010. She also had a history of pre-existing anxiety and depression. I would refer to paragraphs 6-10 of her Honour’s Judgment.
7 A part of the material presented in support of the plaintiff’s application was a Statement of Claim. Whilst it is not headed “Draft Statement of Claim”, that is patently what it was and, indeed, what it must have been, given that the whole purpose of the application was the obtaining of leave to commence proceedings. In any event, I shall refer to it as “the Draft Statement of Claim”. Paragraph 4 of the Draft Statement of Claim reads as follows:
“From in or about 2006 the work which the plaintiff was required to perform in the course of her work duties for the defendant involved repetitive and forceful movements and operations imposed unreasonable strain on her shoulders and arms (such work is hereinafter referred to as ‘the work process’).”
8 It is then alleged that, as a result of the work process, the plaintiff sustained personal injuries due to the strain thereby imposed. There are then Particulars of Injury, which include injury to the left shoulder, nervous upset, anxiety and the like.
9 Why it was pleaded in the Draft Statement of Claim that the relevant work performed was from in or about 2006 is something of a mystery. As stated, the plaintiff had been employed by the defendant since July 1999. In the Draft Statement of Claim, there is no other reference to 2006 or explanation of its significance.
10 In the affidavit of the plaintiff sworn 16 October 2012 and lodged in support of her application, her work history is set out. She has sworn that she started work with the defendant on 5 July 1999. She has described in considerable detail the duties which she performed and there is no suggestion that she did not commence such duties until some date after 5 July 1999 or that at some time there had been a relevant change in the nature of the duties performed. The clear impression created by the affidavit is that the nature of the duties remained constant from the commencement of work on 5 July 1999 until the onset of symptoms in mid-2010. No material was placed before me which would indicate anything to the contrary and the accuracy of this proposition was not challenged. There is no indication in her Honour’s Judgment that there was any dispute as to such a proposition.
11 Turning to her Honour’s very detailed Judgment, at paragraph 5 the following is said:
“As a consequence of the repetitive and heavy nature of her work, she alleges that she suffered injury to her left shoulder and as a result she has been unable to return to employment since 5 October 2010.”
12 Her Honour has also summarised how counsel for the defendant (being Mr McWilliams, the same counsel as in the present application) put the case on behalf of the defendant. Essentially, this was on the basis of recovery from the physical injury; a failure of the consequences of the physical injury to satisfy the requirements of the test contained in the Act; a similar allegation in respect of the mental or behavioural disturbance or disorder; an argument that, on the basis of the defendant’s examining psychiatrists, the work injury was not a cause or major contributing factor to the plaintiff’s current psychological or psychiatric consequences; and arguments concerning the plaintiff’s earning capacity. The link between the psychiatric injury and the physical injury would also be challenged. There is no reference to 2006 and the whole impression given is that there would be no contest as to the occurrence of the physical injury or its relationship with work. There was no suggestion that the contents of the plaintiff’s affidavit material in relation to work duties would be in issue.
13 Indeed, it is apparent from her Honour’s Judgment that, not only was it foreshadowed that the issues would be those described above, but this was the manner in which the application was contested. At paragraph 33, her Honour, referring to the transcript, recorded that: “There was no dispute that Ms Harrison suffered a compensable left shoulder injury”. At paragraph 74, her Honour concluded that the plaintiff had suffered a compensable left shoulder injury as a consequence of her employment with the defendant.
14 When considering whether it had been established that there was a relationship between the plaintiff’s physical injury and her psychological or psychiatric condition, as well as considering the severity of that condition, at paragraph 132 her Honour made the following observation:
“…She demonstrated that she was a resilient person, who was able to maintain her employment with the Defendant for 11 years from June of 1999 up until the time she suffered her compensable left shoulder injury. Following her left shoulder injury she ceased working…”
15 It is to be remembered that it was in approximately September 2010 that the injury manifested itself and in October 2010 that the plaintiff ceased work.
16 In short, throughout a detailed judgment of some 170 paragraphs, there is simply no reference to the year 2006 or to any event of note relating to the nature of employment occurring at or about that time.
17 On 10 April 2015 the plaintiff filed a Writ with this Court. Appended to such Writ was a Statement of Claim dated 8 April 2015. Paragraph 4 of that Statement of Claim reads:
“From 20 October 1999 the work which the plaintiff was required to perform in the course of her work duties for the defendant involved repetitive and forceful movements and operations imposed unreasonable strain on her shoulders and arms (such work is hereinafter referred to as ‘the work process’).”
The reference to 20 October 1999 is necessitated by the operation of s134AB(1) and (2) of the Act.
18 It can be seen that the only distinction between paragraph 4 in the Draft Statement of Claim and paragraph 4 in the Statement of Claim ultimately forming part of the Writ is that the phrase “From 20 October 1999” has been substituted for the phrase “From in or about 2006”.
The present application
19 I have set out the above matters so as to provide some context for the present application, which is one for leave to amend the Defence by adding an additional paragraph. That paragraph reads as follows:
“10. Further, it says that:
(a)the plaintiff has not been granted leave to commence proceedings to recover damages pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) in respect of injury sustained as a result of work duties performed on or before 31 December 2005;”
20 Without setting out in full the balance of the proposed paragraph 10, it is asserted that the plaintiff is precluded from relying upon employment between 20 October 1999 and 31 December 2005 and from claiming damages for injuries sustained as a result of work performed between those dates. There are then some particulars added. In these, reference is made to the affidavit of the plaintiff of 16 October 2012 and the Draft Statement of Claim. It is pleaded that the affidavit alleged that the plaintiff noticed “gradual increase in pain” from “about the middle of 2010”. It is further asserted that the Draft Statement of Claim alleged that the injury occurred as a result of work duties performed from “in or about 2006”. It is then simply stated that the plaintiff was granted leave to commence proceedings to recover damages consequent upon the serious injury application.
21 Thus, it can be seen that the proposed amendment to the Defence effectively asserts that the plaintiff is precluded from relying upon employment duties from 20 October 1999 to the end of 2005. It was made clear in submissions that this is because the Draft Statement of Claim was confined to work performed from in or about 2006. The plaintiff disputes that leave should be given in relation to the proposed amendment.
22 I will now turn to a summary of the submissions made on behalf of the parties in the order in which they were presented.
The submissions on behalf of the defendant
23 The submissions on behalf of Mr McWilliams on behalf of the defendant could be summarised as follows.
24 The plaintiff is precluded from relying upon the course of employment prior to 2006 because the Draft Statement of Claim accompanying the material which formed the basis of the plaintiff’s application and upon which the defendant is and was entitled to rely specifically refers only to the course of employment from in or about 2006. That is an essential part of the basis upon which the serious injury application was conducted and in relation to which leave was given. The plaintiff should not now be permitted to bring proceedings the subject of that leave on a different basis and one which includes in excess of six additional years of employment.
25 Reference is made to the decision of J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260. At paragraph 48, his Honour stated as follows:
“…what is clear is that the worker’s proceeding can only be maintained in respect of the employment duties or tasks that have given rise to the serious injury as the section makes clear. So a claim based upon a discrete injury on a different date to that on which the serious injury was sustained, albeit that it was incurred in the course of employment could not be maintained – nor could an allegation of negligence or statutory breach of statutory duty in respect of work not connected with the infliction of the serious injury.”
26 Reference is also made to the decision of Beach J in Harvey v Methodist Ladies’ College [2008] VSC 425 and the decision of his Honour Judge Parrish in Kaltsis v Ice Design Pty Ltd [2015] VCC 28. These decisions emphasise the proposition that it is the injury which is the focus of the grant of leave and that the injury arises from certain identified circumstances which form the basis for the grant of leave and the subsequent litigation.
27 Further, in the Civil Procedure Act 2010 it is made clear that the interests of justice must prevail and be satisfied. It is not a situation where a defendant is making a last-minute application in relation to some substantial amendment. The plaintiff has been aware of the defendant’s intention for in excess of a month and the hearing date is still effectively two months away.
The submissions on behalf of the plaintiff
28 The arguments of Mr McGarvie and Ms Kusiak on behalf of the plaintiff, which submissions were advanced by Mr McGarvie, could be summarised as follows.
29 No explanation has been advanced by the defendant as to why it has waited until approximately eight weeks before the trial to seek to amend its Defence. The Writ, with the appended Statement of Claim, was issued in excess of a year ago. Reference is made to the decision in Ketteman v Hansel Properties [1987] 1 AC 189 in relation to the strain that is upon personal litigants. As a matter of general principle, in the absence of any explanation as to the delay in seeking to make this amendment, leave to so amend should not be granted.
30 The plaintiff also relies upon the decision of Beach J in Harvey and asserts that the proposed amendment would be futile. Further, reference is made to the decision in Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 to the effect that a plaintiff is entitled to sue for the totality of the injury suffered in the compensable process which gave rise to the injuries.
31 In Kruisselbrink, J Forrest J held that s134AB of the Act was a gateway provision which does not finally determine the right to the parties. He concluded that a worker’s entitlement to bring a common law claim is not dependent upon the identification of a cause of action in a s134AB application, but rather upon establishing the existence of a serious injury. In the present case, the Judgment of her Honour Judge Lawson and the orders made do not limit the granting of leave in any way. Her Honour ruled that the application in relation to the psychological or psychiatric injuries was successful and leave was granted to commence proceedings for both pain and suffering and loss of earnings consequences.
32 Further, the authenticated Order made by her reads as follows:
“Leave is granted to the plaintiff pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to bring proceedings to recover damages in respect of injury suffered by her during the course of her employment with Forty-Eighth Snowman Pty Ltd for pain and suffering damages and the loss of earnings consequences.”
33 Thus, the Order made refers to the course of employment. At paragraphs 5 and 6 of her Judgment, her Honour particularly recorded that the plaintiff was alleging that, as a consequence of the repetitive nature of her work, she suffered injury to the left shoulder and that symptoms in the left shoulder occurred in late September 2010. This is consistent with what was asserted by the plaintiff in her affidavit of 16 October 2012.
34 The decision in Kruisselbrink in fact supports the plaintiff’s position. The question of when the plaintiff first sustained injury is a matter to be determined at trial. Reference is made to paragraph 83 of Kruisselbrink.
35 Leave should not be granted in relation to the proposed amendment of the Defence.
Ruling
36 In my opinion, leave to file and serve the Amended Defence should not be granted. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i) There is nothing in the material put before me to suggest that the serious injury application was contested on any basis other than that the plaintiff was asserting that the injury occurred as a result of work performed with the defendant throughout the course of her employment from July 1999, with the symptoms manifesting themselves in approximately September 2010. Of course, she cannot rely upon work performed prior to 20 October 1999. As stated, there is no reference to the year 2006 in the lengthy affidavit of the plaintiff of 16 October 2012. There is no reference to it in the detailed Judgment of her Honour Judge Lawson. I am assured that there is no reference to it in the Orders made by her Honour.
It was also submitted by Mr McGarvie that the plaintiff’s claim form of 16 February 2011 describes the injury as having occurred gradually and, whilst that document does not seem to have been put in evidence, it is an assertion that was not disputed. In short, what was contested on the serious injury application was a case based upon injury occurring throughout the course of employment and with a finding and orders made accordingly.
(ii) In such a situation, it seems to me that decisions such as Kruisselbrink and Kaltsis in fact support the plaintiff’s position in opposing the proposed amendment. In Kruisselbrink, J Forrest J stated that a claim based upon a discrete injury on a different date to that on which the serious injury was sustained, albeit that it was incurred in the course of employment, could not be maintained. However, at paragraph 49 he went on to say:
“Accordingly where a worker demonstrates that his or her injury is indeed serious, and is related to his or her work, then a claim based on those aspects of the giving rise to that injury can be entertained at the damages trial.”
His Honour also referred to the decision in Brambles Ltd v Wail [2002] VSCA 150. At paragraph 51, he stated as follows:
“Brambles therefore demonstrates that on an interlocutory application it is appropriate for a court, in considering the terms of an order granting leave, to have regard to the material provided to the court to clarify the particular injury in respect of which leave was granted. The same would necessarily apply, I suggest, where a certificate under s 134AB(16)(a) has been granted.”
If such circumstances are considered in the present case, it seems to me to be comparatively clear that the material provided to her Honour clarified that the particular injury in respect of which leave was granted was one that occurred throughout the course of the plaintiff’s employment with the defendant and not just from 2006 onwards. Of course, the operation of s134AB(1) of the Act necessitates that such employment be treated as commencing from 20 October 1999.
In addition, at paragraph 82 his Honour said:
“…the worker’s entitlement to bring a common law claim is not dependent upon the identification of a cause of action in the s 134AB application but rather upon establishing the existence of serious injury.”
(iii) As stated, it seems to me that the decision of his Honour Judge Parrish in Kaltsis also supports the propositions advanced on behalf of the plaintiff. At paragraph 40, his Honour stated as follows:
“The authorities make clear that it is open to a court to peruse the various documents available to the parties at the time of the serious injury application in order to ascertain the extent of any finding of ‘serious injury’.”
At paragraph 43, his Honour referred to the decision in Kruisselbrink, and in particular to the following extract from the Judgment of J Forrest J:
“Provided the events alleged to be productive of the serious injury can be related to the employment (i.e. compensable injury) and it occurred as a result of work after 20 October 1999 then the claim is, at least at the interlocutory stage, tenable unless the employer establishes that there is no basis for linking the serious injury to the work activities.”
In the present case, where the serious injury application appears to have been presented on the basis of the entire course of employment until the manifestation of symptoms of injury, it seems to me that it cannot be said that the defendant has established that there is no basis for linking the serious injury to the work activities.
(iv) In an application such as that presently before me, another factor to be considered is whether the granting of such application would cause prejudice, substantial delay, wasted costs or the like. In the present case, the situation seems to be that neither party could be so prejudiced. Neither side asserted that, if the defendant’s application was granted, the hearing date would have to be vacated, further medical examinations arranged, further investigations carried out or the like. Similarly, if the application is refused, it is not suggested that further investigations, medical examinations or the like would be required by the defendant. Given the passages of time between the handing down of her Honour’s Judgment, the issuing of the Writ and the issuing of the current application, that is hardly surprising. That is particularly so, given my earlier remarks as to the manner in which the application before her Honour was conducted.
In other words, the defendant is not alleging that what is contained in the Statement of Claim takes it by surprise. Regardless of what was contained in the Draft Statement of Claim, it was not alleged before me that the issues argued before her Honour differ in any way from the issues that will be argued at the ultimate trial if the words “From 20 October 1999” are substituted for the words “From in or about 2006”. No persuasive argument, if any, was advanced to the effect that such an alteration would cause the defendant to make fresh enquiries or seek new medical opinions.
(v) In reality, the situation in the present case is comparatively simple. The plaintiff brought an application seeking leave to issue proceedings on the basis of physical injury, in essence, arising throughout the course of that employment and for psychological or psychiatric injury resulting from that physical injury. She was successful in relation to the psychological or psychiatric injury. A more restricted basis for the claim, in terms of years of employment, was not argued. The year 2006 was referred to as the commencement date of the relevant work process in the Draft Statement of Claim. That received no attention and the application was argued and determined on the basis of the entire course of employment, restricted only by the requirement of commencement as at 20 October 1999.
The Judgment of her Honour Judge Lawson and the subsequent Orders made were in favour of the plaintiff and contain no reference to the year 2006. They were based upon the overall course of employment. There is no suggestion that the defendant did other than contest fully the issues which were outlined on its behalf at the commencement of the application and for which it was prepared. Without in any way attempting to impinge upon the duties of the trial judge, on the basis of the material before me it could be anticipated that the trial will be conducted on virtually the same basis. It was not suggested by the defendant that anything occurred in the course of the plaintiff’s employment between 20 October 1999 and 31 December 2005 that impacts, in even the slightest way, upon the manner in which the ultimate trial will be conducted. The reference to 2006 would appear to have received no attention from anyone at the hearing of the serious injury application and no plausible explanation could be given in relation to it before me. It remains an aberration of no consequence.
Conclusion
37 The defendant’s application to file and serve an Amended Defence is unsuccessful. The application is dismissed.
38 I shall hear the parties as to any ancillary orders that are required.
0
5
0