Iliov v Trinity Grammar School Kew (Ruling No 1)
[2024] VCC 1150
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-02310
| LORETTA ILIOV | Plaintiff |
| v | |
| TRINITY GRAMMAR SCHOOL KEW (ACN 004 056 660) | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2024 | |
DATE OF RULING: | 2 August 2024 | |
CASE MAY BE CITED AS: | Iliov v Trinity Grammar School Kew (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1150 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application by plaintiff for leave to file and serve an amended statement of claim
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; County Court Civil Procedure Rules 2018; Limitation ofActions Act 1958; Accident Compensation Act 1985
Cases Cited: Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Shah v Victorian WorkCover Authority [2022] VSCA 95; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Matthews v SPI Electricity Pty Ltd and Ors (No 6) [2012] VSC 70; ACN 074 971 109 & Anor v The National Mutual Life Association of Australasia Ltd [2010] VSC 186; Namberry Craft Pty Ltd v Watson [2011] VSC 136
Ruling: Application for leave to file and serve an amended statement of claim granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr P Haddad | Just Injury Lawyers |
| For the Defendant | Mr A J McG Moulds KC with Ms S De Guio | MinterEllison |
HER HONOUR:
Introduction
1This is an application brought by the plaintiff for leave to file and serve an Amended Statement of Claim in the form dated 8 September 2023. The application is opposed by the defendant.
2The plaintiff sustained an injury whilst working for the defendant.
Procedural history
3On 19 August 2021, the plaintiff lodged a serious injury application pursuant to s134AB(4) of the Accident Compensation Act1985 (“the ACA”) and s328 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the WIRCA”) in respect of injury to the spine and severe psychiatric condition alleged to have occurred on 2 October 2002 whilst she was engaged in heavy manual handling when moving a trolley of foodstuffs down steps at the defendant’s premises (“the first serious injury application”).
4On 24 February 2022, the defendant made a determination pursuant to s330(1)(a) of the WIRCA that the plaintiff had a whole person impairment of 30 per cent or greater and therefore was deemed to have a serious injury. This enabled the plaintiff to bring proceedings in respect of the claimed injury.
5On 17 June 2022, common law proceedings were issued by way of Writ and Statement of Claim dated 17 June 2022. At paragraph 5 of her Statement of Claim, the plaintiff alleged, in a rather economical pleading, that, “As a consequence of an incident, which occurred on or about 2 October 2002, the plaintiff sustained injury”.
6On 29 June 2022, the defendant filed a Defence, and at paragraph 10, pleaded that the cause of action alleged in the plaintiff’s Statement of Claim had accrued more than six years before the proceeding was issued and was barred by s5 of the Limitation ofActions Act 1958 (Vic).
7The plaintiff issued a Summons on 28 August 2023 seeking an extension of time to 17 June 2022, pursuant to s23A of the Limitations of Actions Act 1958 (Vic), for leave to commence proceedings for the recovery of damages in respect of injuries sustained throughout the course of her employment with the defendant and on or around 2 October 2002.
8On 8 September 2023, the plaintiff gave notice to the defendant of her intention to amend paragraph 5 of her Statement of Claim as follows:
“As a consequence of an incident which occurred on or about 2 October 2002, when the Plaintiff was manoeuvring a trolley down steps which placed undue strain upon her upper body, and thereafter throughout the course of her employment when the Plaintiff was required to regularly cart food in and out of the hospitality department using the trolley or by manually handling heavy foodstuffs, the Plaintiff continued to place undue strain upon her body and in consequence, the plaintiff sustained injury (‘the injury’). (‘the Amended Statement of Claim’).”
9The proposed amendments have the effect of broadening the plaintiff’s claim against the defendant from a cause of action involving injury sustained in a single incident of heavy manual handling when moving a trolley of foodstuffs down steps at the defendant’s premises on 2 October 2002 (“the incident”); to one for injury sustained as a result of the incident and thereafter throughout the course of her employment as a result of heavy manual handling of the trolley and/or of foodstuffs more generally.
10On 11 September 2023, the extension of time application pursuant to s23A of the Limitation of Actions Act 1958 (Vic) was listed for hearing in this Court. The plaintiff sought leave to file and serve the Amended Statement of Claim. The application was opposed by the defendant. The proceeding was adjourned and relisted for an administrative mention. After the parties engaged in discussions, the parties agreed to the following, which were noted in the Orders made by his Honour Judge Clark on 12 September 2013:
A. The plaintiff accepts that it is necessary to make a further Form A application pursuant to Part 7, Division 2 of the WIRCA in respect of any claimed injury resulting from the course of her employment with the defendant excluding any injury suffered on or about 2 October 2002 (the Course of Employment).
B. The plaintiff agrees to make any Form A application in accordance with paragraph A, together with all necessary supporting material, to the Victorian WorkCover Authority, relying upon the Course of Employment, within 90 days of this order.
C. In the event that no Form A application is made in accordance with paragraph B, the plaintiff’s s23A application is to be re-listed as soon as possible.
11On 11 December 2023, the plaintiff lodged a subsequent serious injury application (“the second serious injury application”). The second serious injury application was supported by a draft statement of claim, and an affidavit of the plaintiff sworn 11 December 2023, which stated the purpose of the said application as follows:
“(a)In or around August 2021, I lodged a claim for serious injury sustained with the Defendant as a result of an incident on 2 October 2002 (“the first serious injury application”). The first serious injury application was accepted, and I was granted leave to bring proceedings in respect of that application for both pain and suffering damages and loss of earnings damages in respect of that injury.
(b) I hereby lodge this serious injury application to cover any aspect of the injury which is not encapsulated by the first serious injury application.”
12On 27 March 2024, the defendant’s solicitors wrote to the plaintiff’s solicitors advising as follows:
“We have been instructed by WorkSafe Victoria to manage this common law claim.
Your client's application was received by WorkSafe on 11 December 2023. That being the case the determination and provision of material under sections 330(1) and 330(2) of the Workplace InjuryRehabilitation and Compensation Act 2013 (The Act) is due by 25 April 2024.
Having reviewed the contents of the application, we consider this application is a further, unnecessary and impermissible application under the Act.
Further, we consider that a further certificate / leave of the court is not required in order for your client to amend her statement of claim in proceedings CI-22-02310 in accordance with the draft served 8 September 2023.
The relevant case law on this point are the claims dealt with by the Supreme Court in Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 501 and VSC 260. We specifically rely on the second ruling in Kruisselbrink.
To facilitate a clear pathway forward for your client’s common law claim we propose the following:
1.The parties will sign consent orders in proceedings CI-22-02310 that the plaintiff have leave to file and serve the amended statement of claim dated 8 September 2023 (which matches the statement of claim in this further application).
2.The defendant will not rely on a Defence which references whether the Court has jurisdiction to hear the matter or deny the existence of a deemed serious injury for injury to the neck sustained in her employment. The defendant continues to rely on its Defence that there was no injury sustained over the course of employment generally.
3.The parties will consent to the plaintiff's 23A application being fixed for hearing as a matter of priority, to be determined ahead of the matter being refixed for trial.
4.This, the further application, will be denied on the basis it is an impermissible application pursuant to section 338 of the Act.
At the hearing on 11 September 2023 His Honour said ‘It seems to me that there will be a due to the nature of employment type case landing in this court over the road at some stage or other. That being the case, well what I'm urging the parties to do is try to come to some conclusion or agreement about, what is the most, bearing in mind the obligations in section 7 of the Civil Procedure Act, the most effective and most pragmatic way to deal with that conclusion so that the matter can be dealt with on its merits.’
We consider that the proposed solution will also avoid any further delay in bringing this matter before the Court.
We request that you provide us with your client's consent to the proposal above.”
13On 23 April 2024, the defendant’s solicitors wrote to the plaintiff’s solicitors as follows:
“We refer to our letter dated 27 March 2024 to which we have not had a reply.
We have been attempting to facilitate a clear pathway forward to have this matter heard and determined expeditiously. However, relying upon the defendant's outline of submissions in respect of the proposed statement of claim dated 11 September 2023, we concede some aspects of our previous letter were in error.
We wholly withdraw the proposal contained in the letter of 27 March 2024 and the assertions made therein. We will serve WorkSafe's response to the application dated 11 December 2023 shortly.”
14On 24 April 2024, the defendant denied the second serious injury application.
15On 3 May 2024, the plaintiff’s solicitors wrote to the defendant along the following lines:
“We refer to our client’s common law application dated 11 December 2023 (SIA) and proceedings CI-22-02310 (damages proceeding).
Following your client’s response to the SIA, we propose the following steps:
a.The parties sign consent orders in the damages proceedings permitting the Plaintiff to file and serve the amended statement of claim in the form dated 8 September 2023.
b.The Defendant continues to rely on its defence that there was no injury sustained over the course of the Plaintiff’s employment generally.
c.Originating motion proceedings have been issued in respect of the SIA, (proceedings CI-24-02341). We propose the parties agree to have the hearing and/or determination of these proceedings stayed until further order of the Court or agreement of the parties.
d.The parties otherwise consent to the section 23A application being fixed for hearing as a matter of priority, to be determined ahead of the matter being refixed for trial.
We enclose proposed consent orders for your consideration.
Please advise of your position within fourteen days, noting that a warning administrative mention is listed for 31 May 2024 in the damages proceeding.”
16The defendant did not consent to the proposal advanced.
17The plaintiff issued this Summons seeking leave to file and serve the Amended Statement of Claim in the form dated 8 September 2023 and vacate the hearing of the s23A extension application and the second serious injury application.
18The plaintiff’s solicitor, Shiva Kotur, swore two affidavits in support of the Summons on 15 July 2024. The defendant relied on an affidavit sworn by its solicitor, Shelley Werner, sworn on 16 July 2024. Both parties provided me with written submissions.
19For the purposes of the ruling, I have considered the affidavits including the exhibits.
Issue
20The issue arising from the proposed amendment to the Statement of Claim is whether the deemed serious injury certificate confines the plaintiff only to the circumstances that are alleged to have caused the injury on 2 October 2002 as pleaded in the proceeding.
The parties’ submissions
21The plaintiff submitted that in accordance with the principles set out in Matthews v SPI Electricity Pty Ltd and Ors (No.6),[1] Aon Risk Services Australia Limited v Australian National University,[2] ACN 074 971 109 & Anor v The National Mutual Life Association of Australasia Ltd,[3] Namberry Craft Pty Ltd v Watson,[4] and rule 36.01(1) of the County Court Civil Procedure Rules 2018, the plaintiff should be granted the amendment sought to enable a full and just disposition of all issues between the plaintiff and defendant.
[1] [2012] VSC 70
[2] (2009) 239 CLR 175
[3] [2010] VSC 186
[4] [2011] VSC 136
22The plaintiff relied upon the decision of Kruisselbrink v Nationwide Maintenance Services Pty Ltd[5] in which J Forrest J considered the constraints imposed on a plaintiff by the serious injury certificate issued by the Victorian WorkCover Authority. Senior Counsel for the plaintiff submitted that the deemed serious injury in respect of the first serious injury application supported the inference that the injury was sustained as a result of the heavy manual nature of the plaintiff’s employment. He pointed to the following evidence within the first serious injury application:
(a) The Form A dated 19 August 2021 was made with reference to injury to the plaintiff’s “spine” generally;
(b) The serious injury certificate was granted pursuant to s331(1)(a) of the WIRCA, thus jurisdictionally the injury which was the subject of the application had to be an injury sustained over the course of employment. Injury sustained as a result of a specific incident in 2002 alone ought to have been determined pursuant to the provisions of the ACA as required by s5 of the WIRCA;
(c) The plaintiff’s affidavit in the first serious injury application sworn 13 August 2021 in which she described the circumstances of injury, contained evidence capable of supporting an inference that injury was sustained over a period of time;
(d) Evidence of the nature of the plaintiff’s work duties as disclosed in the serious injury response material was capable of corroborating the nature of the manual handling duties performed by the plaintiff;
(e) It was of no consequence that the impairment benefit claim and the Statement of Claim only referred to the 2 October 2002 incident;
(f) At paragraph 20(g) of the plaintiff’s submissions, medical evidence contained in the first application and/or response material, which was referred to in some detail, it was submitted pointed to injury occurring in the course of employment beyond 2 October 2002;
(g) Since the first serious injury response, additional medical evidence was obtained supporting injury occurring in the course of employment;
(h) The plaintiff suffering injury on 2 October 2002 did not preclude a compensable contribution associated with the nature of the plaintiff’s heavy and arduous work duties in the years before or after the 2 October 2002 injury.
[5] [2010] VSC 260 (‘Kruisselbrink’)
23The defendant submitted that it is beyond argument that in the plaintiff’s Form A application in relation to her first serious injury application, she only relied upon injury resulting from the alleged incident on or about 2 October 2002 and the consequences were the impact from a single incident. It also relied on the decision of Kruisselbrink, and I was referred to paragraph 63(3), where J Forrest J confirmed that:
“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”.[6]
[6] Kruisselbrink at paragraph [63](3)
24It also submitted that the Court of Appeal confirmed in Shah v Victorian WorkCover Authority, [7] at paragraph 9, that in respect of an application for ‘serious injury’, the relevant “impact must arise from a single incident or process in respect of which the proposed claim is to be brought”.
[7] [2022] VSCA 95 (“Shah”)
25The defendant pointed to:
(a) The Form A made a claim for economic loss and only relied on earnings for the three years prior to the 2 October 2002 incident;
(b) The impairment benefit claim and the Statement of Claim were confined to the specific date;
(c) The two medical reports accompanying the first serious application were obtained by the insurer for the purposes of the impairment benefits claim and related only to the alleged incident on or about 2 October 2002. There was no medical basis to allege injury having occurred in the course of employment.
26In the circumstances, it submitted there is no legal basis to entertain the plaintiff’s proposed amendment, because the only ‘serious injury’ said to be suffered by the plaintiff in her application was the result of a single incident on or about 2 October. It submitted that there is no proper basis in fact for the proposed amendment.
27Senior Counsel for the defendant also submitted that the course now adopted by the plaintiff was in breach of s7 of the Civil Procedure Act 2010 (“the CPA”). The plaintiff’s application was not in keeping with the overriding purpose of the CPA and the rules of the Court in relation to civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The parties in good faith and consistent with their obligations under the CPA, had agreed to a procedure when the matter was last before the Court and now “the whole situation is one of appropriation and reprobation to suit the circumstances of the time”.
Discussion
28In Kruisselbrink, J Forrest J, at paragraph 3, crystallised the argument:
“If Nationwide’s arguments opposing Mr Kruisselbrink’s amendments succeeds then his claim is limited to one incident at work in May 2005, whereas if he succeeds in securing the amendments he can assert that his employment as a continuum, including the two specific incidents, form the basis for his common law claim.”[8]
[8] Kruisselbrink at paragraph [3]
29His Honour further concluded, at paragraph 62:
“The approach of Beach J is consistent with what was said by the Court of Appeal in Brambles, namely that it is the injury, which is the focus of the grant of leave. 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.”[9]
[9] Kruisselbrink at paragraph [62]
30His Honour considered a number of authorities and noted, at paragraph 56:
“In many cases the Authority grants a certificate specifying an injury occurring on a particular day. That is a convenient way of identifying the injury which is considered to be a serious injury. However, it cannot, in doing so, confine at this stage the worker to a specific work activity which is productive of the injury. That is not its task. It may be that it was only a work activity on that day that produced the injury – that often occurs. But it may also be that the serious injury was a result of a variety of work activities over a period of time. That also happens. If there is any real issue about this, it would be uncommon for it to be resolved as “a pleading point” or on an application for summary judgment – particularly as the basis for the granting of the certificate is not known.”[10]
[10] Kruisselbrink at paragraph [56]
31His Honour then drew all of the principles together and set out the five key aspects of the relationship between the granting of the serious injury and the pleading of common law damages. His Honour stated, at paragraph 63:
“I 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 (such as set out in Aon Risk Services Australia Ltd v Australian National University [42]), 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.”[11]
[11] Kruisselbrink at paragraph [63]
32At paragraphs 48 and 49, J Forrest J said:
“It is not necessary to determine whether s 134AB(2)(3) or (16) are, in the true sense, jurisdictional provisions; 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.
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. It is also open to an employer to contend, at trial, that a particular set of work circumstances are not related to the serious injury and therefore cannot form the basis for the proceeding. I will, in a moment, consider the approach to be taken on this issue at an interlocutory stage.”[12]
[12] Kruisselbrink at paragraphs [48]-[49]
33As observed by J Forrest J, the Court is entitled to look at the material provided to the authority as part of the application.
Conclusions
34The plaintiff referred in her affidavit in support of her first serious injury application, to the events that occurred on or about 2 October 2002 whilst she pushed a trolley. She swore that as she was manoeuvring the trolley down the steps, she lost control of the trolley and it twisted and jerked her left arm and neck. She also swore that she was regularly required to cart food in and out of the hospitality department, which was upstairs. She had to negotiate steps each time. Typically, she had to negotiate steps in the music centre, before she could access the lift. It was a difficult part of her job. I accept that this description is capable of supporting the inference that this activity during the course of her work, led to her sustaining injury to her spine over time.
35I was also referred to numerous extracts from medical reports, which I will not set out in full; however, I accept that there are histories recorded which also support the inference that the plaintiff was involved in heavy manual handling of the trolley and or foodstuffs more generally. Again, without referring to all the extracts, I note:
(a) Dr Mutton, occupational physician, in his report dated 18 June 2008, recorded that the plaintiff suffered injury on 2 October 2002 when she lost control of a trolley and that her symptoms were getting worse when she utilised her upper limbs, especially overhead; that she was experiencing problems with overhead work and that there had been some minor modifications to her work but essentially she was performing her pre-accident duties. In a report dated 30 July 2008, Dr Mutton noted gradual deterioration over time in the context of the history he obtained that she had commenced work for the defendant in the year 2000 and worked in the hospitality department preparing classes, organising the buying of food and conducting demonstrations;
(b) Dr Michael Bowles, occupational physician, in his report dated 6 January 2010, noted her range of movement would depend on the day and he found her complaints were aggravated by driving and general day-to-day movements. Her complaints would generally become worse during the day and if there was an extra workload, it particularly increased neck stiffness;
(c) Dr To, general practitioner, in his report dated 2 April 2010, noted that the plaintiff felt bound to carry out her duties despite her pain and that her job required her to take items in a trolley, load the trolley and transfer the items. The plaintiff had neck stiffness, restriction and discomfort in raising her arms above the horizontal level;
(d) Dr Quan, surgeon, noted in a report dated 27 August 2012, that the chronic pain was getting worse and that she was finding it difficult to perform her occupation because of neck pain and stiffness as well as from heavy lifting. In his report dated 12 March 2015, he said that the plaintiff was getting a lot of pain if she looked up or down for long periods and her neck became extremely painful and, on 1 December 2020, he said the neck pain was getting progressively worse and, as a result, she found it difficult to perform a lot of her occupational duties, particularly heavy lifting;
(e) Mr Carey, occupational surgeon, on 14 January 2012, noted she soldiered on until she was unable to cope;
(f) Dr Fish, occupational physician, in his report dated 29 March 2021, also said she continued to work after the injury until the situation became worse.
36Based on the above, I accept there is sufficient evidence to support an inference that the nature of her work duties throughout the course of her employment accelerated the degermation of the cervical spine. In addition, the description of her work duties points to her engaging in constant manual handling.
37The defendant made the serious injury determination under s331 of the WIRCA in respect of the first application. Section 5 of the WIRCA provides that:
“Except as otherwise expressly provided in this Act, this Act applies to the entitlement of a worker to compensation under this Act in respect of—
(a) an injury to the worker arising out of, or in the course of, or due to the nature of, employment on or after 1 July 2014; and
(b) an injury arising—
i.out of, or in the course of, or due to the nature of, employment; and
ii.by way of gradual process over a period beginning before, and continuing on or after 1 July 2014—
but does not apply to or in relation to an injury arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014.”
38The defendant made no submissions in respect of this. That the plaintiff’s first serious injury application was made under both the ACA and the WIRCA is significant as it supports the plaintiff’s intention to make an application for injury sustained over a period spanning the operation of both the ACA and the WIRCA.
39I am of the view that the circumstances of the case in Shah are not similar to that of the plaintiffs. In Shah, evidentiary findings were made that there were two separate and distinct injuries and that did not support a finding that injury occurred in the course of employment. I find that the plaintiff’s employment after the incident is implicated in her injury.
40I also note that the course proposed by the defendant in its letter dated 27 March 2024 is what is now being pursued by the plaintiff. I consider that both the plaintiff and the defendant have changed course and strategy in the manner in which they have approached the litigation. Just as the defendant criticised the plaintiff for approbating and reprobating, the defendant is now engaging in similar conduct. Whilst it agreed to a certain course of conduct on 11 September 2023, in considering the second serious injury application, the defendant’s solicitor, on 27 March 2024, suggested proceeding in a manner which it now strongly opposes. The defendant’s solicitor no doubt considered the second serious application with a view to advising her client in respect of the determination. She must have formed the view that there was sufficient evidence to support an inference that the plaintiff had suffered injury in the course of employment. So much is clear from the letter. The writer said in that letter that she had reviewed the contents of the application and considered it was unnecessary and impermissible under the Act. She referred to Kruisselbrink and “specifically” relied on it as it was on point. What she suggested was a clear pathway to proceed with the litigation. It is this pathway that the defendant now opposes. It is unfortunate that the parties have taken at times contradictory and contrary positions as this has led to further delay in a claim that had its beginnings well over 20 years ago. This application creates further delays.
41The analysis of J Forrest J in Kruisselbrink makes it clear that the amendment will not be permitted if it is clear beyond argument that the alleged employment circumstances have no relationship to the serious injury itself and unless the Court is satisfied the amendment is futile, it would normally be granted so that the issues can be agitated at the damages trial. I am not satisfied that the proposed amendment proposed would be futile.
42I will grant the plaintiff leave to file and serve the proposed Amended Statement of Claim. Both parties agreed that if I were to grant the plaintiff’s leave application, they could not proceed with the hearing of the s23A application. I will hear the parties on the required orders and costs.
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