Moore v Belgrave Heights Christian School
[2019] VCC 2078
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03446
| DIANE MOORE | Plaintiff |
| v | |
| BELGRAVE HEIGHTS CHRISTIAN SCHOOL | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Moore v Belgrave Heights Christian School | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2078 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Application to strike out defence – whether grant of serious injury certificate attaches to injury or incident - meaning of an incident - injury sustained over time – injury during the course of employment
Legislation Cited: Transport Accident Act 1986, s93; Accident Compensation Act 1985, s134AB; Civil Procedure Act 2010
Cases Cited:Porter v Bonojero Pty Ltd [2000] VSC 265; Wilson v Nattrass (1995) 21 MVR 41; Petkovski v Galletti [1994] 1 VR 436; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 501; Harvey v Methodist Ladies College [2008] VSC 425
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett SC with Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr Masel QC | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff to strike out two paragraphs of the defendant’s defence. Behind this application is a debate about how a worker who suffers injury throughout the course of employment involving a motor vehicle can bring a common law claim.
2 Diane Moore was employed as a bus driver with Belgrave Heights Christian School. She worked in this role from about 2005 until 13 August 2012. She alleges that the ergonomic arrangement and physical requirements of her day-to-day duties over the course of her employment and, in particular, on 13 August 2012, caused her to suffer injury. Specifically, she alleges it caused injury to her lower back and a psychiatric injury.[1] On 13 August 2012, while simultaneously depressing the brake and clutch on the bus she was driving, she felt the onset of sudden sharp lower back pain and went off work. She has now had a spinal fusion at the L4-5 level.
[1]Statement of Claim at paragraph [3], Plaintiff’s Court Book (“PCB”) 8
3 It is whether Ms Moore can plead and rely on the alleged negligence relating to her work duties over the course of her employment from 2005 to 13 August 2012 that is in issue between the parties. While they both agree that she can allege negligence on behalf of her employer on 13 August 2012 specifically, the defendant otherwise objects to the plaintiff’s pleading that Ms Moore sustained injury as a result of her work duties throughout the course of her employment. This is because, although the plaintiff is and was at all relevant times a worker, she sustained her injury, at least in part, on 13 August 2012. Such an injury arose as a result of a transport accident within the meaning of s93 of the Transport Accident Act 1986 (“TAA”).
4 In such circumstances, s134AB of the Accident Compensation Act 1985 (Vic) (“ACA”), required Ms Moore to obtain a certification that she had sustained a “serious injury” within the meaning of that term in s93 of the TAA. After the making of that application, the Transport Accident Commission (“TAC”) granted Ms Moore a serious injury certificate, certifying that she had a serious injury which arose on 13 August 2012 in compliance with s93(4)(c) (“the Serious Injury Certificate”).
5 In due course, Ms Moore issued these proceedings, claiming not only that the circumstances of the injury on 13 August 2012 and the injury on that day but further, that her injuries occurred throughout the course of her employment by reason of the prolonged failure to provide a safe system of work.
6 While the plaintiff issued a summons seeking to strike out paragraphs [9] and [10] of the Defence it became apparent at the hearing that the real impugned paragraphs were [10] and [11] of the Defence. The pleadings in issue are set out below:
Statement of Claim
9 On 13 August 2012, as part of her work duties in the course of employment with the Defendant:
(a) The Plaintiff picked up and drove students to school on the morning school run;
(b) The Plaintiff was required to drive students to a school camp at Trafalgar. While on the return drive, the Plaintiff felt acute pain in her lower back while depressing the clutch and the brake…
10 The work duties over the course of the Plaintiff’s employment and in particular, on 13 August 2012, imposed strain on the Plaintiff’s lumbar spine.
11 Over the course of her employment and as a result of the work duties including 13 August 2012 the Plaintiff suffered injury.
Defence
9 Save that it admits that on 13 August 2012, as part of her work duties in the course of her employment with the Defendant:
(a) the Plaintiff picked up and drove students to school on the morning school run;
(b) the Plaintiff was required to drive students to a school camp at Trafalgar;
It otherwise does not admit the allegations in paragraph 9.
10 Save that it admits that the Plaintiff suffered an injury on 13 August 2012 (the nature and extent of which is not admitted), it does not otherwise admit the allegations in paragraph 10 and says further that the Plaintiff is not entitled to bring a proceeding in respect of her work duties over the course of her employment with the Defendant as the Plaintiff has not satisfied the serious injury requirements set out in Section 134AB of the Accident Compensation Act 1985 (“the Act”).
11 This replicates [10] as set out above.
7 The issue for determination can be crystallised in this way:
Does the grant of the Serious Injury Certificate confine the plaintiff to:
(a)the injury sustained in the incident as identified in the Serious Injury Certificate; and
(b)the circumstances that caused the injury on the day identified in the Serious Injury Certificate?
8 For the reasons which follow, I have determined these questions in the negative. I find for the plaintiff, and will strike out paragraphs [10] and [11] of the Defence.
Facts
9 In order to identify the issues clearly, it is necessary to set out some of the background detail. This material is non-contentious, but aids in understanding my decision. The plaintiff was born on 1 August 1968. In around 2005, she was working part time as a bar and gaming attendant at Zagames. At the same time, she commenced working for Belgrave Heights Christian School as a bus driver. She had had some previous back pain.[2] Specifically, on 14 November 2005, she experienced back problems after she was forced to suddenly brake while driving the bus during the course of her work duties. She lodged a WorkCover claim, which was accepted.
[2]Affidavit of the plaintiff, sworn 18 June 2015, PCB 151 at paragraph [30]
10 The plaintiff worked as a casual employee with the school for about twenty hours per week. She was required to do five morning and afternoon bus runs.[3] She described her work duties as driving one of a fleet of six buses at the school. She deposed that normally she would drive a particular old forty-five-seater bus with a manual transmission, which had difficult brakes, causing severe jerking. She deposed that she was often thrust forward and then backwards in her seat and that it was generally a non-ergonomic set up. She deposed to making numerous verbal complaints to the school regarding these problems.[4]
[3]PCB 154 at paragraph [20]
[4]PCB 154 at paragraph [41]
11 She deposed that on 13 August 2012, she was completing her normal bus run, but also had to drop a group of students off for a school camp and was driving for an unusually long period of time. She deposed to applying the brake and clutch simultaneously, at which point she felt a sudden acute and excruciating pain in her lower back.[5]
[5]PCB 154 at paragraph [43]
12 She clearly stated at paragraph 47 of her affidavit, that she attributed her lower back problems to her difficulties with problematic brakes and the non-ergonomic set up of the buses she was required to drive throughout the course of her employment. She described the particulars of the seating arrangement and why it caused her difficulties.[6]
[6]PCB 155 at paragraph [47]
13 On 10 September 2012, the plaintiff lodged a WorkCover claim, specifically in respect of the lower back injury caused by work on 13 August 2012. Later, on 22 May 2013, she lodged a further claim for her lower back injury and resultant psychiatric injury, but particularised the cause of her injury as arising throughout the course of her employment with the school and, in particular, on 13 August 2012.[7]
[7]Note the second WorkCover Claim is Exhibit LH2 to the affidavit of Linda Hanley, sworn 14 August 2019 at PCB 93
14 On 18 June 2013, the defendant school rejected the claim of the plaintiff for compensation.
15 As a result, the plaintiff issued proceedings in the Magistrates’ Court and questions that went to her WorkCover entitlements were subsequently referred to the Medical Panel. The Medical Panel’s answers to those questions were favourable to the plaintiff and she subsequently had a ruling in her favour, such that her worker’s compensation claim for injury throughout the course of her employment to her lower back and resultant psychiatric injury was accepted. She has remained on weekly payments of compensation and medical and like expenses since that time.
16 On 23 June 2015, the plaintiff lodged a serious injury application on the defendant school and the Victorian WorkCover Authority (“VWA”) pursuant to s 136AB of the ACA.[8] At that point, and as part of the application, the plaintiff lodged a proposed draft statement of claim. That pleaded that the plaintiff’s injury had occurred, at least in part, throughout the course of her employment and also specifically on 13 August 2012. This prompted solicitors for the defendant to write, suggesting that the appropriate gateway provision in order for the plaintiff to bring a common law damages claim was through the TAA. At first, the plaintiff’s lawyers resisted this course, as they considered at least the employment injuries sustained throughout the course of employment from 2005 until 13 August 2012 could not be classified as transport accidents but were, rather, injuries arising out of or in the course of employment. To this end they then issued an originating motion seeking serious injury certification from the court.
[8]Exhibit LH5 to the affidavit of Linda Hanley, sworn 14 August 2019 at PCB 93
17 Subsequently, however, it appears that Ms Moore’s lawyers lodged an application with the TAC, seeking a serious injury certificate pursuant to s93 of the TAA.[9] The TAC responded to Ms Moore’s solicitors, stating that the injury, as particularised, was not an injury within the meaning of the TAA. Particularly, they stated that “the balance of evidence indicates that she sustained injury over time by way of gradual process”.[10] This was on 19 October 2016. However, on 20 January 2017, the TAC wrote to Ms Moore’s solicitors and stated they “now accept that the specific incident on 13 August 2012 was as a result of a ‘transport accident’”.[11]
[9]Exhibit LH25 at PCB 143
[10]Exhibit LH11 at PCB 112
[11]Exhibit LH12 at PCB 114
18 However, on 12 April 2017, the TAC rejected Ms Moore’s serious injury application and she subsequently issued an Originating Motion seeking review of that decision. Ultimately, on 11 January 2018, the TAC came to agreement with Ms Moore’s solicitors to grant a serious injury certificate. By consent, the plaintiff’s serious injury Originating Motion against the VWA in the ACA proceeding was dismissed. No serious injury certificate was granted by the VWA.
19 The terms of the Serious Injury Certificate issued pursuant to s93 of the TAA are important. It stated:
“The TAC, for the purposes of Section 93 of the Transport Accident Act 1986, certifies in respect of Diane Moore that:
(a)The TAC has made the impairment determination referred to in Section 93(4)(a) of the Act;
(b)The degree of impairment determined was less than 30 per centum;
(c)The TAC is satisfied that the claimed injury is a serious injury; and
(d)Consent is given pursuant to Section 93(4)(c) of the Act for Diane Moore to bring proceedings for the recovery of damages in relation to injury sustained by Diane Moore as a result of a transport accident which occurred on 13 August 2012.” [12]
[12]For the full certificate, see Exhibit LH14 (supra) at PCB 120
Contentions and Arguments
20 The plaintiff’s primary position put by Mr Brett SC who appeared with Ms Gold for the plaintiff was that the grant of a serious injury certificate simply opens a gateway to allow the plaintiff to pursue a cause of action. In this way, the plaintiff’s counsel described the Serious Injury Certificate as attaching to the injury rather than a particular cause of action.[13]
[13]Plaintiff’s submissions at paragraphs [32]-[33], 16 October 2019 at PCB 31
21 The defendant argued that this was an incorrect way to approach an interpretation of the grant of a serious injury certificate under the TAA. Mr Masel QC pointed to the fact that the TAA was concerned with compensation flowing from transport accidents. He submitted that took one to the definition of “transport accident” in the Act, which required “an incident”. This, necessarily, focused attention on a singular event arising on one day by reason of the use of the indefinite article He argued this was in keeping with Porter v Bonojero Pty Ltd,[14] in which Eames J construed the term “incident”. In considering these arguments, it is necessary to set out the relevant parts of the TAA, namely:
[14][2000] VSC 265 at [126]
“3 Definitions
…
transport accident means an incident directly caused by the driving of a motor car …”
and
“…
injury, except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident …;
… .”
“93 Actions for damages
(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
…
(2)A person who is injured as a result of a transport accident may recover damages in respect of the injury if—
(a)the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and
(b) the injury is a serious injury.
(3) If—
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b) the degree so determined is 30 per centum or more—
the injury is deemed to be a serious injury within the meaning of this section.
(4) If—
(a)under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and
(b) the degree so determined is less than 30 per centum—
the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(c) the Commission—
(i) is satisfied that the injury is a serious injury; and
(ii) issues to the person a certificate in writing consenting to the bringing of the proceedings; or
(d) a court, on the application of the person, gives leave to bring the proceedings.
(5)A copy of an application under subsection (4)(d) must be served on the Commission and on each person against whom the applicant claims to have a cause of action.
(6)A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
(Footnote omitted.)
Does the grant of a TAA serious injury certificate attach to the incident or the injury?
22 I would answer that question favourably to the plaintiff as I consider that the grant of the certificate attaches to the injury and as a result leaves open to the plaintiff to prove in an ordinarily formulated cause of action how that injury arises.
23 The starting point for that result is the language of the TAA itself. The words of the TAA and the context in which they appear are important and determinative of the issue before me. The terms of s93 of the TAA are such that they extinguish the right to bring common law proceedings that the plaintiff has.[15]
[15]Wilson v Nattrass (1995) 21 MVR 41 at [59]
24 Here, the right to bring common law proceedings springs into life when the plaintiff is able to satisfy one of the defined gateways set out in the TAA. It is not in dispute that the plaintiff has accessed one of the gateways as contained in s93(4)(c), by the issue of a certificate the TAC consented to the bringing of proceedings. By that certificate the TAC has determined that the plaintiff has sustained injury in a transport accident. That directs attention to the definition of transport accident which requires there to be an incident directly caused by the driving of a motor car.
25 This, then, leads to a consideration of Porter v Bonojero and the comments of Eames J at paragraphs [128]-[134], which was relied upon by the defendant. It was said by Eames J that the word “incident”, as used in the legislation, was to be tied to a discernible event. This, it was submitted by Mr Masel, was consistent with the defendant’s position that the grant of a serious injury certificate was to be based on an injury as a result of a transport accident arising on one particular day. I do not consider Porter to be binding in the matter before me. It was a case where a truck driver alleged, in part, a defective seat caused an aggravation of a back injury over time.[16] Porter was not concerned with the scope or meaning of s93(4)(c), as no serious injury certificate had been granted. Rather, the focus was on whether the injury said to occur throughout the course of employment from the poorly maintained seat was a transport accident. Eames J found it was not. His Honour did not make findings as to the effect that a grant of a serious injury certificate has on the manner in which a worker could prove that incident arose. Here, the TAC has determined a transport accident occurred on 13 August 2012. What is in dispute is the effect of that determination on the scope of the plaintiff’s cause of action, as pleaded in his common law proceedings. I consider the determination of His Honour Eames J to be one considering a different point to the matter under consideration here and distinguishable from this case.
[16]He also alleged an incident on a specific date where he fell from the truck cabin due to a missing step. However, this is not relevant for the purposes of the discussion.
26 Turning from Porter and a consideration of the incident to consider the scope of the common law right given to the injured person upon the grant of the certificate it can be seen that it is an unfettered right. This can be seen in a number of ways. In Petkovski v Galletti,[17] the Court of Appeal made the point that at common law, in a cause of action, a plaintiff can only recover against the defendant for the damage they caused. To do so here must mean that the grant of the Serious Injury Certificate allows the plaintiff to proceed against the defendant in respect of injury throughout the course of employment. To read s93(4) as confining the plaintiff to a day on which injury accrued, and work duties only on that day, is to add a new element to the plaintiff’s cause of action: a limitation on the ability of the plaintiff as to what damage is claimable against the defendant by reason of the terms of the Serious Injury Certificate.
[17][1994] 1 VR 436
27 This is also contrary to Ashley JA’s reasoning in Nattrass who found that once the serious injury gateway was accessed the traditional elements of the cause of action and nothing more need be established.[18] In the same vein their Honours Southwell and Teague JJA noted that the TAA does not affect long established principles of compensating an injured person only for such disabilities as are proved to have resulted from the relevant accident. [19] As such, there is often a situation, as in Petkovski, of an underlying condition said to be aggravated by the transport accident. Necessarily, any trial would have to consider disentangling between the underlying condition and the aggravated condition. However, if the defendant’s position in this case were accepted, it would lead to an anomalous result: while the defendant could adduce evidence to disentangle and reduce the plaintiff’s claim, the plaintiff could not lead evidence of wrongdoing on the defendant’s behalf said to worsen or bring about the ultimate injury. In short, the plaintiff could argue about the straw that broke the camel’s back, but not the load placed there before, that made that last straw so critical.
[18]Wilson v Nattrass 21 MVR 41 at page 55
[19]Petkovski v Galletti [1994] 1 VR 436, 443
28 That position was summarised by the Court of Appeal in Swannell v Farmer where the Court noted that s93:
“contemplates a cause of action consisting only of its common law elements and is concerned with imposing a barrier to enforcing that cause of action rather than creating a new, more complex cause of action.”[20]
[20]Swannell v Farmer [1999] 1 VR 299, 307 at [22]
29 Mr Brett SC who appeared with Ms Gold for the plaintiff submitted that a further reason to support his contention is that in the context of the ACA, this issue has been considered and determined in the plaintiff’s favour.[21] It was submitted that the serious injury schemes in both the TAA and ACA were so similar that the interpretation as to the effect of the grant of a serious injury certificate in proceedings under the ACA should be translated directly to the TAA. The defendant opposed this. Mr Masel pointed to numerous ways in which the TAA serious injury scheme differed from that in s134AB of the ACA.[22] He argued that attention must be focused on the statutory language of the TAA in s93 and the terms of the Serious Injury Certificate granted to determine this case.
[21]Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 501, per J Forrest J and Harvey v Methodist Ladies College [2008] VSC 425 per Beach J
[22]Transcript (“T”) 51-52
30 I agree with the defendant’s argument on this point. I note the very significant differences in the provisions of both Acts.[23] There are also significant differences in the language employed in the serious injury sections. Transposing reasoning in respect of the language and context from one Act to another is fraught with danger. I consider attention must be focused on the language employed in the TAA to determine the issue before the Court currently. However, doing so reveals a further reason which supports the plaintiff’s overall contention. This emerges when comparison of both schemes, and this particular plaintiff’s circumstances, are considered. This is because the facts peculiar to the plaintiff’s case, namely, that she is a worker who allegedly has suffered injury throughout the course of her employment, but while driving a motor vehicle. If she were a worker who suffered injury throughout the course of employment operating a machine and was granted a serious injury certificate pursuant to the ACA she would be at liberty, in her pleadings, to plead an unsafe system of work throughout the course of employment leading to her injury – just as in Porter. A worker in Ms Moore’s position cannot. It may be asked rhetorically why is it that a worker injured throughout the course of employment is treated disadvantageously just because her injury was directly caused by the driving of a motor vehicle. Counsel for the defendant pointed to general principles of certainty and the social utility behind the TAA.[24] None of the Second Reading Speeches concerning s93 of the TAA or s134AB illuminate this issue.[25]
[23]See T 46.9
[24]T 54.15-T55.8
[25]Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1986, 10 September 1986, 11 September 1986, 17 September 1986, 18 September 1986, 30 September 1986, 3 December 1986, 31 March 1988, 5 May 1988, 30 October 1992, 11 November 1992, 13 November 1992. The Second Reading Speech on 13 April 2000 by the Honourable Mr Cameron 13 April 2000 at Hansard 1001 referred to the restoration of a fundamental right when introducing legislation (s.134AB) which gave injured workers the rights to pursue common law damages.
31 It seems to me, however, the avoidance of this anomalous result is a strong reason to uphold the plaintiff’s overall contention: that once the TAC consent to the bringing of proceedings for the plaintiff’s serious injury, her cause of action is permitted to encompass her employment duties and connected injuries that led to the injury, the subject of the serious injury certificate. To this I would add that even when enacting the serious injury threshold Parliament did not reveal an intention to fundamentally abrogate common law rights. At the time the Transport Accident Bill was first introduced it did away with common law rights altogether. There was much concern about this such that subsequent to Parliamentary Committee discussing the proposal the government reversed course and introduced the serious injury threshold prior to accessing common law rights.[26] However there is nowhere either in the TAA or the ACA that evinces an intention to fundamentally alter the common law rights of workers injured in a transport accident. I consider the position of the defendant amounts to arguing for such a fundamental change.[27] Without a clear intent expressed in the legislation, or extrinsic materials, I am not persuaded that the defendant’s position is correct and I prefer the plaintiff’s interpretation as to the way s93 operates.
[26]Victoria, Parliamentary Debates, Legislative Assembly, 3 December 1986, 2677-2678.
32 Further to this the interrelationship between the ACA and the TAA suggests the Serious Injury Certificate cannot operate to limit the plaintiff’s claim in the way argued by the defendant. It can be seen by s134AB(a)(i), which required the plaintiff to obtain a serious injury certificate from the TAC, that statutory WorkCover benefits have to be accounted for at the time of any common law settlement or judgment.[28] Here those payments have been paid to the plaintiff on the basis of accepted WorkCover claims for injury arising throughout the course of employment. If the plaintiff’s common law claim was limited as proposed by the defendant then the common law settlement or judgment would be made on the limited basis of an incident occurring on 1 day. There would be disconformity within s134AB then as the amounts to be repaid are in respect of injuries potentially much broader than those recovered on a limited basis in the common law claim. This works a substantial unfairness on the worker.
[28]Section 134AB (1)(a)(i) refers to ss25(b), 26 and 36(b) which require account to be taken of weekly payments and lump sum compensation.
The effect of s3(3)(c)
33 Just prior to the hearing of the summons the plaintiff filed further submissions which raised a new point. It concerned the operation and effect of s3(3)(c) of the TAA. The plaintiff argued that the wording of s3(3)(c) was the same as that used in s93(1). The plaintiff then argued that as s3(3)(c) did not make reference to a specific “incident” but rather focused attention on “injury” this supported the construction they favoured that the TAA and ACA were sufficiently similar so that the principles in Kruisellbrink should be held to apply in this case. [29]
[29]See Plaintiff’s supplementary submissions/speaking notes at [8-9].
34 Given the late raising of this point I gave leave to the defendant to file a responsive submission. Mr Masel filed such submissions on 9 December 2019. Those submissions, in essence, argued that the plaintiff’s preferred construction would if accepted, render the definition of “transport accident” inutile. He argued that such a position could not be the case when Parliament has made it clear that the definition is of significant importance in determining the scope of the coverage of the TAA.[30]
[30]Defendant’s supplementary submissions filed 9 December 2019 at [8].
35 I agree with the submissions of the defendant on this point. The clear focus of the TAA is maintained by its constant and consistent reference as to what constitutes a “transport accident”. This places attention on the terms of that definition at numerous points throughout the TAA, particularly on the wording which requires there to be an “incident directly caused by the driving” of a motor car. That turns attention to the context of the way the term is used in s93(1) and secondly to the way it interrelates to s93(4). In construing those provisions, regard must be had to the context in which they appear.[31] That context is that s93(1) requires there to be an injury arising from a transport accident. This calls into life the definition of transport accident itself. Secondly the terms of s3(3)(c) itself use the term “transport accident” as well, and it draws on that definition to maintain consistency in the TAA. The structure of s93(1) first requires there to be an “injury” the subject of the transport accident. Then by s93(4) that “injury” is the subject of application to the Court for leave to bring proceedings. To adopt the construction proposed by the plaintiff would, in my opinion, be to deprive that definition of “transport accident” of its force. It would bring disconformity to the provisions between s93(1) and 93(4). I do not uphold the plaintiff’s contention on this ground.
Should this Court consider the application to strike out at this stage?
[31]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
36 It was submitted by the defendant that the Court should not consider the plaintiff’s application on the basis that, at an interlocutory stage, findings of fact were required to be made in order to determine the application.[32]
[32]Paragraph [30] of the plaintiff’s submissions and paragraphs [37]-[40] of the defendant’s submissions.
37 I do not consider that submission made out. First, there is no necessity to make concluded factual findings in order to determine the plaintiff’s application. Secondly, and alternatively to the first point, the defendant points to paragraph [30] of the plaintiff’s submissions as to the factual matters said to require findings. That paragraph refers to a significant amount of medical material from both parties. That material almost unanimously supports the plaintiff’s contention that she sustained injury throughout the course of employment and also specifically on 13 August 2012. Thus, to the extent factual findings are required, they do not seem in contest. Thirdly, as was made clear by J Forrest J in Kruisselbrink in obiter,[33] it is preferable to deal with such issues prior to trial. It narrows the issues in dispute, which is in keeping with the aims of the Civil Procedure Act 2010, but also has significant practical effect – on the scope of discovery, interrogation, witness evidence and expert liability material.
[33]At paragraph [22]
38 In summary I will uphold the plaintiff’s arguments and strike out paragraphs 10 and 11 of the defendant’s defence. I will give the defendant leave to amend their defence. I will hear the parties on ancillary orders.
High Court in Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and
McHugh JJ.
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