Kruisselbrink v Nationwide Maintenance Services Pty Ltd

[2010] VSC 501

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 07012 of 2009

DANNY KRUISSELBRINK	Plaintiff
v
NATIONWIDE MAINTENANCE SERVICES PTY LTD	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2010
DATE OF RULING:	1 September 2010
CASE MAY BE CITED AS:	Kruisselbrink v Nationwide Maintenance Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 501

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PRACTICE – Claim for damages – Injury arising out of or in course of employment – Adjourned trial – Leave previously granted to plaintiff to amend statement of claim – Whether defendant precluded from pleading amended defence relying on ambit of serious injury certificate under s 134AB(16)(a) of Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Meldrum QC and Mr M. Walsh	Clark Toop Taylor
For the Defendant	Mr R. Gorton QC and Ms S. Manova	Wisewoulds

HIS HONOUR:

1. This is an application by the defendant to amend its defence to add three further paragraphs to it.  The case came on for trial before me yesterday, and this application was foreshadowed.  However, because of the problems with the availability of a doctor, I heard some evidence yesterday, and have now heard the application to amend the defence.

1. In effect, Mr Gorton QC, who appears with Ms Manova for the defendant, seeks to amend the defence, on the basis either that the plaintiff was granted leave by the issue of a certificate by the WorkCover authority to claim damages under s 134AB of the Accident Compensation Act for injury sustained on specific dates, namely, 4 May 2005 (misstated as 5 May 2005 in the certificate), and that, accordingly, he is not entitled to bring proceedings for any other injuries, of which his employment was a cause.  Alternatively, it is sought to be pleaded that the plaintiff was granted leave, by the certificate, to sue only for injuries arising out of the course of his employment with the defendant during limited periods, namely, while he was working at the Alexander Nursing Home. 

1. The issue, which arises before me, is whether those foreshadowed defences have already been conclusively determined against the defendant by a ruling of his Honour Justice J. Forrest in this case on 18 June 2010; see Kruisselbrink v. Nationwide Maintenance Services Pty Ltd.[1]

   [1][2010] VSC 260.

1. On that day, his Honour heard and determined an application by the plaintiff for leave to amend his statement of claim.  The original statement of claim, which is referred to at paragraph 15 of the ruling, had pleaded that the plaintiff had suffered injuries as a result of the repeated use and manoeuvring of heavy equipment throughout his employment.  As his Honour pointed out, that statement of claim was deficient, because it failed to identify the relevant period of time over which the injury was sustained. 

1. Accordingly, an amended statement of claim was proffered, which is set out at paragraph 19 of his Honour’s ruling, and which pleaded that the plaintiff sustained injury between 2001 and May 2005 in the course of his employment, when he was required to repeatedly use and manoeuvre heavy cleaning equipment, including, but not limited to, first, the period from August 2004 until May 2005 from the use of a heavy steam cleaning machine, and, secondly, between 2000 and May 2004, when he was required to carry a heavy floor polishing machine up stairs.  At that time, as his Honour’s ruling records, senior counsel for the defendant opposed the application for leave to amend the statement of claim, on the basis that those amendments were inconsistent with the terms of the certificate issued by the Victorian WorkCover Authority.

1. It was then contended that if any amendment of the statement of claim was to be permitted, it must be confined to the pleading of a specific incident on 4 May 2005.  That argument or objection was overruled by J Forrest, and his Honour gave leave to the plaintiff to amend his statement of claim in the manner I have just described. 

1. In reaching that conclusion, his Honour examined in some detail the authorities relating to the effect of certification by the authority under s 134AB of the Act. He pointed out, if I may respectfully say so, correctly, that the focus of such a certificate, and the focus of the Authority in granting that certificate, is not on the cause of action, or indeed, the events which gave rise to the relevant cause of action, but, rather, whether the impairment, deriving from the injury complained of, is such as to constitute the injury a serious injury under the Act, and, also, whether that injury arose out of, or in the course of, or due to the nature of, the employment of the plaintiff. His Honour then examined the certificate, and in doing so considered, again, if I may respectfully say so, correctly, that it was appropriate to construe the certificate in light of materials that had been relied on by the plaintiff in support of the application for the certificate.

1. Having done so, his Honour concluded that the certificate did not confine the plaintiff to suing for an injury which was sustained on 4 May 2005.  The critical question for me is whether that conclusion of his Honour was a final conclusion binding on me, or whether it is open to the defendant to re-litigate it before me. 

1. I must say that I find the question a little difficult.  On the one hand, as Mr Meldrum QC who appears with Mr Walsh, for the plaintiff, has correctly pointed out his Honour gave detailed and careful consideration to the issue and expressed his views, which I have just described, in quite firm terms.  On the other hand, and what gives me pause on this issue, is that his Honour, on three occasions in his detailed and careful judgment, described the application before him as an interlocutory application, namely at paragraphs 49, 51 and 65(5).

1. Secondly, his Honour, at paragraph 74 appears to have left the ultimate determination of this issue, at least arguably, open for contention at trial. There, his Honour stated that as follows: “Nationwide’s primary contention that Mr Kruisselbrink is limited to a claim based on an incident on 4 May 2004” - (I interpolate I think his Honour meant 2005) – “must be rejected. It cannot possibly be said that the injury, (assuming it to be that described in the s 134AB application) is solely related to that event. Indeed, the evidence to the contrary is overwhelming. If there is any real issue about this which I very much doubt, it can be thrashed out at trial”.

1. It is that last sentence, containing the rider to which I have just referred, to which gives me some pause in determining this issue.  Adding to the difficulty is paragraph 85 of his Honour’s judgment, which reads:

“If Nationwide wishes to contend that certain aspects of Mr Kruisselbrink’s employment are not related to his serious injury and cannot found a damages claim, then it should be allowed to amend its defence accordingly.  However, this issue cannot be resolved until the evidence is concluded and that challenge, if successful, may, it seems to me, run the risk of the discharge of the jury (assuming Nationwide maintains its insistence upon trial by jury).  This, of course, will be a matter for the trial judge.”

1. Pausing there, I have doubts as to whether his Honour there was leaving open the reagitation of the issue which Mr Gorton now contends.  However, I must say that the matter is not entirely free from doubt. 

1. In those circumstances, and given that the application before Justice Forrest was an interlocutory application, the two qualifications expressed by him in his considered judgment in my view do not permit me to shut out at this stage the application of Mr Gorton.  I should say that I have sympathy in this respect for Mr Meldrum’s submission, because the point was litigated in some detail before Justice J Forrest, his Honour gave careful consideration to it, and expressed strong views in relation to it.

1. However, the application was primarily, although not solely, an application by the plaintiff for leave to amend his statement of claim, and the argument with which his Honour was dealing was whether that statement of claim included a cause of action in respect of which the plaintiff at law by force of the Accident Compensation Act was precluded from pleading.

1. It would seem therefore, given those qualifications, and with some reluctance, it behoves me to permit the defendant to amend its defence in order to plead paragraphs 11, 12 and 13 of the draft which has been proffered for me.  I should add that the amended defence put forward on behalf of the defendant also originally contained an amended paragraph 10.  Mr Gorton properly resiled from pressing that in the course of argument before me.

1. Bearing in mind those conclusions, I therefore give leave to the defendant to plead paragraphs 11, 12 and 13 of the draft, which has been discussed before me this day.