McPhee v Steelsmith Engineering Pty Ltd
[2023] VCC 57
•3 February 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-05379
| PETER JOHN McPHEE | Plaintiff |
| v | |
| STEELSMITH ENGINEERING PTY LTD | First Defendant |
| and | |
| SELKIRK BRICK PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2022 | |
DATE OF RULING: | 3 February 2023 | |
CASE MAY BE CITED AS: | McPhee v Steelsmith Engineering Pty Ltd and Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 57 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury – industrial accident – period of time to be disregarded by reason of claim for compensation under s98C – preliminary question as to whether claim statute barred
Legislation Cited: Limitation of Actions Act 1958 (Vic), s5(1)(a); Accident Compensation Act 1985, s134ABA; Wrongs Act 1958 (Vic)
Cases Cited:Walters v Perton (No 3) [2019] VSC 733; Victorian WorkCover Authority v Hartley [2010] 27 VR 116
Ruling: Plaintiff’s cause of action against the second defendant not statute barred.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C B Thomson | Saines Lucas Solicitors |
| For the First Defendant | Mr M J Hooper | IDP Lawyers |
| For the Second Defendant | Ms F A L Ryan SC with Mr B Thompson | Moray & Agnew Lawyers |
HIS HONOUR:
1The plaintiff, Peter John McPhee, is a boilermaker/welder, now 59 years old. He was employed in the maintenance department of the second defendant, Selkirk Brick Pty Ltd (“Selkirk”), for about 15 years prior to commencing employment with the first defendant, Steelsmith Engineering Pty Ltd (“Steelsmith”) in Ballarat in about May 2003.
2In the course of his employment with Steelsmith, Mr McPhee injured his left knee in late 2004 and again in December 2007/January 2008.
3As a result of this injury, Mr McPhee has required eight surgical procedures to his left knee. Those surgeries include three initial arthroscopies, a partial lateral meniscectomy and chondroplasty, culminating in total knee replacement on 29 October 2014.
4On 13 August 2020, ten years after his initial claim for compensation under s98C of the Accident Compensation Act 1985 (“the Act”) in respect of the “left lower limb” was lodged in July 2010 (“Impairment Benefit Claim”), Mr McPhee’s whole person impairment was determined at 32 per cent by issue of a notice of entitlement under s104B of the Act. A serious injury was deemed under s134AB of the Act, and a writ was issued on 15 December 2021 claiming damages for negligence and/or breach of duty against both Steelsmith and Selkirk.
5By his statement of claim dated 15 December 2021, Mr McPhee alleges that:
“The Plaintiff sustained injuries in the course of his employment when he fell through the floor of the dryer tunnel at the premises [of Selkirk] on three occasions during December 2007 and/or January 2008 because the floor was in a state of disrepair, including on one occasion when oxyacetylene equipment fell on the Plaintiff (“the incidents”).”
6The statement of claim:
(a) alleges negligence on the part of the first and/or second defendant, and a breach of the second defendant’s obligations as the occupier of the premises under the Wrongs Act 1958;
(b) seeks damages in respect of injuries to his left knee, left and right hip, right knee, lumbar spine and a psychological reaction to his injuries: at [15].
7By paragraph 20 of its defence filed 16 February 2022, Selkirk pleads that Mr McPhee’s claim against it is statute barred by reason of the Limitation of Actions Act 1958 (Vic) (“LA Act”) and ss134AB, 134ABA and 134ABB of the Act.
8By his amended summons filed 5 July 2022, Mr McPhee seeks an order that paragraph 20 of Selkirk’s defence be struck out on the basis that he is not statute barred. Further, if the claim is statute barred, Mr McPhee seeks an order for the time within which this proceeding be permitted to be heard be extended pursuant to s23A(4) of the LA Act.
9Steelsmith, the employer, does not plead a limitations defence. It supported the relief sought in Mr McPhee’s amended summons, and made detailed submissions to the effect that his claim against Selkirk is not statute barred.
10Mutual notices claiming contribution as between Steelsmith and Selkirk have been filed and served.
11At the return of the summons, by agreement of the parties, and pursuant to Rule 47.04, I directed that a question be tried in the following terms:
“Is the plaintiff’s cause of action against the second defendant statute barred by reason of s5(1)(a) of the Limitation of Actions Act 1958?”
12In my view, applying the factors in Walters v Perton (No 3) [2019] VSC 733 at [37], this is a clear case where efficiencies may be achieved by determining the preliminary question. If the proceeding is statute barred, the hearing of the extension application may then be determined at a later date. There were no facts required to be determined judicially in order to determine the question. Whilst affidavits had been filed, no witnesses were called or cross-examination of deponents conducted, and the trial proceeded on the basis of documents tendered. Each party provided written submissions.
13For the reasons which follow, the answer to the question is no, the plaintiff’s cause of action against Selkirk is not statute barred.
The Issues
14The principal issue is whether the Impairment Benefit Claim determined by the Victorian WorkCover Authority (“VWA”) on 13 August 2020 included the injuries to the left knee sustained in or about December 2007/January 2008, or, for the purposes of the Act, was confined to the injuries sustained on 11 November 2004.
15If the former, then Mr McPhee obtains the benefit of a suspension of the limitation period under the Act.
16The limitation provision contained within s134ABA provides, relevantly, that the period of time commencing on the day a claim for compensation under s98C is lodged and ending 30 days after the VWA advises the worker of the determination under s104B (or of the decision of the Medical Panel) is to be disregarded.
17Pursuant to s134ABA(b), the time from lodgement of the serious injury application on 24 March 2021 until filing of the Writ on 15 December 2021 must also be disregarded.
18It was agreed that Mr McPhee sustained a compensable injury in or about December 2007/January 2008; and it was also common ground that:
(a) the limitation period of 6 years under s5(1)(a) of the LA Act applies to the plaintiff’s cause of action by reason of s40 of the LA Act;
(b) in order to issue proceedings in relation to the 2007/2008 injury, Mr McPhee must first obtain leave to do so pursuant to s134AB;
(c) he may not bring proceedings in accordance with s134AB unless:
(i)determinations of the degree of his impairment have been made under s104B; and
(ii)he has made a serious injury application under sub-s (4);[1]
[1] Section 134AB(3)
(d) as Mr McPhee had lodged a claim for compensation under s98C for the relevant injury to be assessed under s104B, he was prevented from making a serious injury application under sub-s (4) until the degree of impairment resulting from the injury had been determined in accordance with s104B and the determination and the entitlement to compensation accepted by him;[2]
(e) the assessment of Mr McPhee’s knee impairment under s104B took account of the history of incidents at Selkirk;[3]
(f) Mr McPhee has the benefit of any suspension of time under s134ABA in relation to “the claim” the subject of the Impairment Benefit Claim both against the employer (Steelsmith) and Selkirk.
[2] Section 134AB(4A)
[3] Transcript (“T”) 42, Line (“L”) 26
19In essence, the question may be resolved by reference to the scope of the Impairment Benefit Claim. Pursuant to s104B of the Act, a worker must include all injuries arising out of the same event or circumstance; and may only make one claim for compensation under s98C in respect of injuries arising out of the same event or circumstance (sub-ss 104B(5A) and (5AA)).
20Selkirk submit that assessment of the left knee injury relied upon in the Impairment Benefit Claim form – which specifies an injury in 2004 – under s104B should not retrospectively enliven s134ABA in relation to the 2007/2008 incident for which Mr McPhee now seeks to claim damages against Selkirk.[4] This is because the Impairment Benefit Claim should be seen to relate to a discrete claim arising out of the 2004 “event or circumstance”: see s104B(5A) and (5AA). The appropriate course for Mr McPhee to adopt was to lodge:
(a) a further claim for compensation under s98C in respect of injuries arising out of the Selkirk incidents; and
(b) a separate serious injury application once that claim had been determined under s104B, there being no bar on him so doing under s134AB(21) because it would have been in respect of an injury sustained in different compensable circumstances.[5]
[4] T43
[5] See Museums Victoria v Susnjara [2021] VSCA 166, [83]
21For the reasons set out below, I find that the Impairment Benefit Claim included injuries to the left knee sustained in or about December 2007/January 2008. Accordingly, the Writ was issued within time.
Statutory framework
22Section 104B of the Act applies to a claim for compensation under s98C. It provides for various time limits for accepting or rejecting liability for injuries included in “the claim”, suspension of claims in circumstances of the condition of the injury of the worker not being stable (s104B(1D)), and that a worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s98C (s 104B(5A)).
23Sub-sections (5A), (5AA) and (5B) provide:
“(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
(5AA)A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
...
(5B)A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.”
24“Injury” is defined in s5 as any physical injury and, without limiting the generality of that definition, includes, relevantly, “a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease”.
Claim history
25Mr McPhee’s various claims for compensation under the Act have a complicated history. For convenience I have extracted the relevant paragraphs of the affidavit of Anna Teoludzka[6] sworn 15 June 2022,[7] which sets out a brief chronology accepted by Mr McPhee:
[6] IDP Lawyers, solicitors for the employer, Steelsmith
[7] Plaintiff’s Court Book (“PCB”) 522
“On 16 July 2010 the worker completed a claim for compensation under s 98C in respect of his “left lower limb” (i.e. including the left knee). The claim form states it was received by the first defendant on 20 July 2010. It has a stamp of “CGU Workers Compensation (Vic) Ltd” which bears the date “22 July 2010”. CGU Workers Compensation (Vic) Ltd (CGU) is an authorised agent of the VWA.
By letter dated 6 September 2010 CGU advised the worker that his condition could not be considered to have stabilised and that the impairment benefit claim under s 98C in relation to his left knee injury was suspended under s 104B(1D) of the Act.
I believe that, for some years thereafter, the s 98C claim remained suspended due to instability of the left knee injury. The worker underwent surgery to his left knee on 17 February 2011, 13 October 2011, 29 May 2012 and 20 December 2012. Later, on 29 October 2014, the worker underwent a total left knee replacement.
By letter dated 22 October 2012 from the worker’s solicitors to CGU, he sought to amend his s 98C claim to include injury to his “right knee and hip”.
By letter dated 21 August 2013, CGU advised the worker that for the purposes of s 98C, liability for the left knee injury was accepted, but liability was rejected for the left hip, right knee and right hip.
On 10 December 2013, the worker issued Magistrates’ Court proceeding number D13729093, inter alia, challenging CGU’s liability notice in respect of the s 98C claim.
Following a referral of medical questions by a magistrate in that proceeding, on 27 July 2016 the Medical Panel issued an Opinion. The Opinion stated, in effect, that the worker had suffered a left hip injury to which his employment with the first defendant was a significant contributing factor.
On 16 August 2016 the Magistrates’ Court made orders, by consent, adopting the Opinion.
However, on 25 January 2017 the worker issued a fresh Magistrates’ Court proceeding, being number H10246359. As such, while that proceeding was on foot, the claim under s 98C was still pending.
By way of a further impairments benefit claim form signed by the worker on 21 February 2020 for injury to the “left knee, rectal injury/tear, depression”, the worker amended his s 98C claim to include a rectal tear injury.
On 13 August 2020 CGU issued a notice of entitlement under s 104B advising the worker he had a 32% whole person impairment for injury to his left knee and a rectal tear. The worker accepted the decision.
As per s 134AB(a), the date that is 30 days after 13 August 2020 was 12 September 2020. As such, the period of just over 10 years from 16 July 2010 to 12 September 2020 is to be disregarded in calculating the limitation period under LAA.”[8]
[8] Paragraphs 7 to 18 (Reference to exhibits and their location in the materials omitted)
26In addition:
(a) a further related Medical Panel Opinion of 9 September 2019 was challenged by Steelsmith by way of judicial review in the Supreme Court. On 8 September 2020, the Supreme Court dismissed that challenge;
(b) following dismissal of the Supreme Court challenge, final Orders in the Magistrates’ Court adopting the Medical Panel’s Opinion were not made until 12 October 2020;
(c) on 24 March 2021, Mr McPhee lodged a serious injury application with the VWA for pain and suffering damages only, relying upon impairment to the left knee, left and right hip and lumbar spine. Such an application could not, by reason of s134AB(4A), be made while the s98C claim was pending;
(d) on 13 April 2021, Mr McPhee served his serious injury application on Selkirk;
(e) on 22 July 2021, WorkCover determined that as Mr McPhee’s whole person impairment is greater than 30%, he is deemed to have a serious injury within the meaning of s134AB(15) of the Act;[9] and
(f) on 15 December 2021, Mr McPhee filed a writ in compliance with s134AB(12)(e).
[9] PCB 457
Background
27Mr McPhee first noticed the pain in his left knee in late 2004 after prolonged kneeling and squatting.[10] The plaintiff gave a more fulsome history of the circumstances of the onset of pain to various doctors, which was broadly consistent: it involved kneeling on concrete to drill holes inserting metal bollards at the premises of Mount Langi Ghiran Winery, with later incidents at Selkirk’s in 2007/2008.
[10]Affidavit of the plaintiff sworn 16 May 2022, [6]
28He provided a history to Dr A Capes on 3 February 2012 as follows:
“He was working at the Mount Langhi [sic] Ghiran winery. He was mounting bollards into the concrete. He did this on his knees. He would be up and down all the time, kneeling 15 minutes at a time. He would also have to squat. He would do these manoeuvres up to one hundred times whilst at Langhi Ghiran.
Early on, he felt a tearing feeling in the lateral aspect of the left knee whilst drilling bollards. He reported it. He attended St John of God Emergency. He was told it was a muscle strain. He had no investigations. He kept working with knee pain.
The pain subsided but it would recur on occasions. He took analgesia.
He went to work at Selkirk’s in 2007. He was working in the dryer in Plant 1. There was a false floor. Mr McPhee fell through the floor in December 2007. He landed on his left knee. He had severe pain in the left knee. The pain settled within an hour.
He fell again a few days later. This time his left leg was caught and he fell backwards with the left knee forcibly hyperflexed and the knee was probably twisted slightly.
The left knee severely pained again. This time the pain didn’t subside and he saw his local doctor. He had some swelling in the knee.
He struggled on with work.
He was sent to see Mr David Mitchell, orthopaedic surgeon …”[11]
[11]Report of Dr Capes to Saines Lucas Solicitors dated 3 February 2012, Second Defendant’s Court Book (“D2CB”) 118; PCB 280
29Mr McPhee gave the following account of the injury the subject of the proceeding in his affidavit of 16 May 2022:
“THE INJURY
8. In December 2007/January 2008 I was employed by Steelsmith to perform maintenance and repair works at the premises of Selkirks at their brickworks in Ballarat.
9. Selkirks had a five or six week shut down over the Christmas period during which I and about four other employees of the defendant performed maintenance and repairs.
10. I suffered the injuries to my left knee over the course of employment at Selkirks during this five or six week period as a result of approximately two or three falls due to poor condition of the flooring in the dryer tunnel.
11. The Dryer tunnel was about 90 metres in length. The tunnel was in a very bad state of repair. It had a false floor about one metre above the solid floor. Some sections of the false floor had fallen in, other sections were in a state of decay. Furthermore, the lighting was poor and we were using torches and it was hard to see the hazards ahead.
12. I was required to work in the dryer tunnel replacing rails and framework which supported the false floor. Below the false floor there was a lot of rubble including bricks.
13. On approximately two or three occasions in December 2007/January 2008 I fell through the false floor of the dryer tunnel and badly jarred my left leg and hip.
14. On the third occasion I fell through a gap in the floor when I was pulling a trolley containing large Oxygen and Acetylene bottles weighing probably in excess of 200 kilograms. I fell through a gap in the flooring and the top of the trolley fell on top of me. I landed on my left knee and immediately experienced severe pain in my left knee and across my lower back. Two workmates lifted the trolley off me. After resting for a while the pain settled a little and I continued to work.
15. Thereafter the left knee pain increased considerably. Initially I thought it was merely a marked increase of the pain I had experienced from time to time since about 2004. On further reflection it became clear to me that the left leg injury deteriorated greatly and quite rapidly particularly after the last of these falls in early 2008. Until then I had been able to perform heavy manual work.
16. When I saw Mr Shannon for the Defendant in December 2009 I mentioned to him that I first had problems with the knee in about 2004 but that the condition had gradually improved and was manageable until the falls in late 2007/early 2008 and that the knee had become much worse since that time.”[12]
[12]PCB 50
30The Impairment Benefit Claim form signed by Mr McPhee states, in answer to question 6, “Date injury sustained or date you first became aware of the condition”: November 2003 [sic, 2004].[13]
[13]PCB 529
31The claim form does not contain any reference to injuries sustained in the course of his employment with Steelsmith at the premises of Selkirk in 2007/2008. In answer to questions as to how and where the injuries occurred, the claim form specifies that Mr McPhee was “putting pressure on masonry drill and felt tear in knee” at “Langi Ghiran Winery near Beaufort”.
32Whilst neither the claim form nor (for example) his history to Dr David Kotzman recorded in a report dated 4 August 2010[14] refers to the later injury at Selkirk’s premises, there are multiple other references to the subsequent incidents in other documents. Those documents include Mr McPhee’s history to Mr Michael Shannon recorded in his report dated 16 December 2009:[15]
“He states that he first had trouble with his left knee about five years ago when he knelt down and felt a tearing sensation on the lateral aspect of the left knee.
… he continued working, although he had problems kneeling and squatting.
However the knee gradually improved and was manageable until about 18 months ago when he jarred it when a floor gave way.”
[14]D2CB 98
[15]D2CB 94
33This report was prepared at the request of CGU (Workers Compensation) Vic Ltd, the claims agent.
34In the section of the report headed “Opinion”, Mr Shannon recorded the following findings:
“Mr McPhee would appear to have sustained an initial lateral meniscus injury in the course of his employment and the circumstances of injury and indeed of the aggravation would be consistent with this.”
35Pausing there, whilst the history to Mr Shannon does not include reference to the location of the fall, Mr Shannon is reporting to the claims agent that there was a later aggravation of an initial injury, both in the course of his employment with Steelsmith. The document records that CGU received Mr Shannon’s report on 21 December 2009.
36Mr McPhee swore an affidavit on 20 January 2011 in relation to an abortive application for serious injury under s134AB of the Act.[16] It is not in dispute that this affidavit was served and considered by the VWA. Mr McPhee deposes to injury in the course of employment, including frequent crouching, kneeling and squatting activity for prolonged periods. It referred to work on site at Selkirk’s, including “difficulties with the knee when doing maintenance work at Selkirk’s.”[17]
[16]This application was subsequently withdrawn on the basis that it was invalid, no determination having been made by the VWA of Mr McPhee’s impairment in accordance with s104B: see s134AB(4A) of the Act
[17]PCB 451
37On 23 February 2012, CGU received the report of Dr Capes dated 3 February 2012. By the time CGU received this report, “the injury” the subject of Mr McPhee’s Impairment Benefit Claim included the falls at the premises of Selkirk in 2007/2008.
38Whilst the approvals for the various surgeries performed upon Mr McPhee are not all in evidence, the hearing was conducted on the basis that at all times the VWA accepted that the injuries to Mr McPhee’s left knee requiring treatment arose out of the course of his employment. Those surgeries included:
(a) arthroscopy on 29 May 2012, during which Mr Whitehead, orthopaedic surgeon, performed a partial lateral meniscectomy; and
(b) total knee replacement performed by Mr P Tran on 29 October 2014.
39That the VWA was in no doubt as to the scope of the Impairment Benefit Claim is at the very least inferred by payment for his treatment. Despite the complex claim history including multiple claim forms, at all relevant times Mr McPhee’s claim for compensation was processed under the same claim number (04 07 0148604).
40The position must have been clear by August 2013, when Dr David S Elder reported to CGU (report received 19 August 2013) the circumstances of both the initial injury working at a vineyard drilling bolts into concrete, but importantly the subsequent injury while working:
“for the same employer at a different site, the Selkirk brick factory, he suffered two falls in which he bent his left knee and in the second one suffered direct trauma to the kneecap.”[18]
[18]PCB 382
41Two days later, on 21 August 2013, CGU advised Mr McPhee for the purposes of his Impairment Benefit Claim that liability for the left knee injury was accepted, but rejected other injuries.[19] The VWA then assessed Mr McPhee’s degree of impairment to his left knee for the purposes of s91 of the Act in accordance with the report of Dr Elder.
[19]Letter from CGU to Mr McPhee dated 21 August 2013, PCB 534
42On 11 January 2018, Mr McPhee completed a worker’s claim form in relation to injuries to his left knee, left hip, lumbar spine, right hip and rectal tear[20] as a result of the incidents in 2004 and in 2007/2008.[21] Although the VWA rejected liability for that claim, ultimately the Medical Panel determined the matter in Mr McPhee's favour. The Panel found, inter alia, that Mr McPhee was suffering from “left knee dysfunction following a patellofemoral injury, surgically treated by left total knee replacement relevant to the alleged injuries”.[22]
[20] (as a result of medication-induced constipation)
[21] PCB 488
[22] PCB 492
43On 21 February 2020, Mr McPhee completed a further Impairment Benefit Claim form,[23] by which the VWA accepted he “amended his section 98C claim to include a rectal tear injury.”[24] The claim form expressly included impairment to the left knee resulting from injury suffered in the later incidents. Selkirk, for its part, submits that this was a discrete Impairment Benefit Claim in respect of injuries arising out of the events or circumstances in December 2007/January 2008.
[23] PCB 519
[24] PCB 524, affidavit of Anna Teoludzka sworn 15 June 2022, at [16]
44On 13 August 2020, CGU issued a notice of entitlement under s104B for 32% whole person impairment for injuries to the left knee and a rectal injury/tear.[25]
[25]PCB 525
Discussion and findings
45Mr McPhee submits that:
“Although the impairment claim form of 18 July 2010 did not reference the incidents at the second defendant’s workplace, it nevertheless was in respect of this injury, namely injury to his left knee. The provisions of s.134ABA therefore still apply. No proceeding could be commenced until the impairment process in respect of his left knee had concluded with the requisite advice.”[26]
[26]Plaintiff’s submissions, PCB 34
46I accept that submission. I find that the 13 August 2020 notice of entitlement under s104B was in respect of injury arising from any initial incident, and the aggravation sustained in December 2007/January 2008 at Selkirk’s. It follows that Mr McPhee takes the benefit of s134ABA of the Act, and his claim against Selkirk is within time.
47It was put against Mr McPhee that at no time was there a bar on him commencing a separate application for compensation under s98C relying upon the injury sustained in or about December 2007/January 2008. In other words, that this injury did not arise out of the same event or circumstance as the November 2004 injury, and therefore there was no bar under s104B(5AA) from making a second claim for compensation under s98C.
48On the evidence before me, I find that Mr McPhee did not make a second claim for compensation under s98C in respect of his left knee injury. Instead, he submitted reports and other materials over time on the basis of injuries to his left knee sustained in the course of his employment. At no time did the VWA require him to lodge a fresh s98C claim. Instead, it:
(a) accepted the further Impairment Benefit Claim form dated 21 February 2020 as having the effect of amending the claim to include a rectal injury. I regard this as significant;
(b) accepted the basis upon which the claim – including in relation to the left knee injury sustained in or about December 2007/January 2008 – was made; and
(c) assessed Mr McPhee’s impairment accordingly on 13 August 2020.
49Following an extended period of time involving numerous surgeries, and multiple proceedings in relation to the scope of the claim in the Magistrates’ and Supreme Court, and two Medical Panel Opinions (the particulars of which are not relevant to set out in any detail in this ruling), the VWA assessed Mr McPhee’s entitlement under s104B as 32% whole person injury for injury to the left knee and a rectal injury/tear.
50Pursuant to sub-s104B(5B), “a determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.”
51As set out above, I find that the injuries entitling Mr McPhee to compensation included in his claim for compensation under s98C include the incidents at Selkirk’s.
52Plainly s98C does not refer to all injuries included “in the claim form”. A broad, non-technical approach should be taken as to what is included in the claim,[27] and in this instance the claim progressed over a decade.
[27] See O'Brien Transport Services Pty Ltd v Williams [2022] VSCA 62, [55]
53Under sub-s5A, a worker must include “all injuries arising out of the same event or circumstance” in a claim for impairment benefits. By the time Mr McPhee swore his first serious injury affidavit in 2011,[28] the employer was on notice that all incidents and injuries arising out of the nature of his employment were relied upon. By 19 August 2013 at the latest, when it received Dr Elder’s report and impairment assessment, the VWA knew about the falls at Selkirk’s.
[28] PCB 451, at 452 [7], [8]
54In my view, the phrase “same event or circumstance” construed broadly in the circumstances of this case includes the incidents during his employment with Steelsmith set out in the claim materials, and all injuries to the left knee arising out of that employment.
55I find that the VWA’s notice dated 22 July 2021[29] from its solicitors, IDP Lawyers, of the determination that Mr McPhee had a deemed serious injury, was:
(a) in respect of injury to the left knee the subject of the determination of the degree of impairment made under s104B; and
(b) that impairment included the injuries sustained in 2007/2008.
[29] PCB 472
56The relevant impairment assessments were based on the evaluation of the radiological investigations and multiple surgical interventions, Mr McPhee’s reported symptoms, and the findings on clinical examination. The doctors conducting the independent medical examinations assessed overall impairment to Mr McPhee’s left knee as they found it, without compartmentalising impairment arising out of one incident or the other.
57It is also significant that Dr Elder performed a second assessment of Mr McPhee in May 2020. By that time, Mr McPhee had undergone total knee replacement in 2014 by reason of the worsening condition of his left knee. Dr Elder’s 2020 assessment was accepted by Mr McPhee, and plainly included the impairment consequences to Mr McPhee following the insult to his left knee in December 2007/January 2008.
58It is also relevant that technicalities in process did not prevent a proper assessment of the substance of the claim sought to be made by Mr McPhee over the years as to the injuries the subject of his Impairment Benefit Claim. I accept the submission of Steelsmith that the effect of the lodging of the further s98C claim form in February 2020 was to formalise the position, prior to the final assessment notice being issued. That later claim form did not expand the scope of Mr McPhee’s claim under s98C in relation to his left knee; it represented a confirmation of the existing scope of the Impairment Benefit Claim.
59Steelsmith submitted that as a matter of statutory construction Mr McPhee retains the benefit of the Impairment Benefit Claim in terms of relief against time running for the purposes of the limitation period under s134ABA whether or not the falls are mentioned. Although having regard to my findings above I do not need to determine this, I do not accept this submission. This construction seems unlikely having regard to the usual meaning of the phrase “same event or circumstance”, and the requirement under s104B(5A) that a worker must include all injuries arising out of the same event or circumstance in a claim for compensation under s98C. It is more likely that this requirement necessarily envisages, and indeed the practice of the VWA confirms, that such a claim may be amended over time in order to comply with sub-s(5A).
60In the circumstances of this proceeding, the VWA did not allocate a new claim number to Mr McPhee’s claim for compensation upon receipt of notice of additional injury to the right knee and hip on or about 22 October 2012,[30] or a further Impairment Benefit Claim for the “left knee, rectal injury/tear, depression” on 21 February 2020[31] (referring in terms to the falls at Selkirk’s).
[30] PCB 533 – letter from Saines Lucas to CGU
[31]PCB 519
61I was referred to the decision of the Court of Appeal in Victorian WorkCover Authority v Hartley [2010] 27 VR 116 at 124-126 [44]–[53]. Hartley concerned a s98C claim for compensation for a knee injury. After making the claim, the plaintiff had surgery to his knee, which caused further injury. After the finalisation of his first claim, Mr Hartley made a further s98C claim in relation to the injury arising out of the surgery. The Court of Appeal held that, because the injuries had the same “genesis”, Mr Hartley was barred from making the second s98C claim. In other words, the subsequent injuries to Mr Hartley sustained in the context of injury-related surgery arose from the same event or circumstance as the initial injury, and thus Mr Hartley was prevented from making a second s98C claim.
62In its submissions, Steelsmith asserted that any worsening of Mr McPhee’s knee due to the falls in 2007/2008 had its genesis in the initial 2004 injury, and therefore by reason of s104B(5A), s104B(5AA), and the decision of Hartley, his injuries could not be divided across two s98C claims.
63Ms Ryan SC, counsel for Selkirk, submitted that Hartley was of little relevance as, unlike in Mr McPhee’s case, there was no distinct aggravation injury occurring by way of a distinct cause of action or a different event or circumstance.[32]
[32] T44 L22
64Mr Hooper, counsel for Steelsmith, conceded that the Hartley was distinguishable on its facts,[33] however maintained the relevance of the principle that if an aggravation had its genesis in an initial injury, it ought be considered to have arisen out of the initial event or circumstance.
[33] T71 L8
65I accept Ms Ryan’s submissions that Hartley is of limited assistance in determining the issues in this proceeding because of the different factual scenarios.
66I accept Mr McPhee’s submission that the injuries sustained in the Selkirk falls in 2007/2008 were included in the July 2010 claim for compensation lodged under s98C within the meaning of sub-s104B(5B).
67The date of lodgement of the Impairment Benefit Claim in respect of Mr McPhee’s knee injury at Selkirk’s was on or about 22 July 2010. Accordingly, the period of time from that date until on or about 13 September 2020 (30 days after the determination of the Impairment Benefit Claim) is to be disregarded in the calculation of the period of time under the LA Act, s5(1)(a).
68On the basis that Mr McPhee’s causes of action first accrued in December 2007, then a period of approximately 2 years and 7 months elapsed before the Impairment Benefit Claim was lodged on 20 July 2010. A further period of approximately 6 months elapsed between 12 September 2020 and 24 March 2021 when the serious injury application was lodged. The Writ filed 15 December 2021 was issued well within the 6-year limitation period applicable to his causes of action against the defendants.
Other matters
69An issue in the application was whether the Parliament intended for s134ABA to have a retrospective operation in the context of an amendment to a claim for compensation under s98C after the limitation period has expired. In this context it may be observed that the Act does not provide in terms for amendment of a s98C claim.
70The VWA has demonstrated in this and other Impairment Benefit Claims, however, that it entertains applications for amendment.
71I need not resolve the question of the intention of Parliament because of my finding that the Impairment Benefit Claim stood amended as at the date of receipt of Dr Cape’s report on 23 February 2012, alternatively upon receipt of Dr Elder’s report in August 2013. If the operation of s134ABA is taken to have commenced from either of those dates, then the proceeding is not statute barred.
Conclusion
72I find that Mr McPhee’s cause of action against Selkirk is not statute barred by reason of ss 5(1)(a) and 40(a) of the LA Act. It follows that paragraph 20 of Selkirk’s defence must be struck out.
73In the circumstances Mr McPhee’s amended summons filed 5 July 2022 should otherwise be dismissed, there being no need to determine the application for extension of time within which to commence the proceeding pursuant to s23A of the LA Act.
74I will hear the parties on the question of costs, and the form of final orders.
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