Richard Taylor v Savoir-Fair Interior Linings Pty Ltd (Ruling No 2)
[2025] VCC 1697
•21 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| WORKCOVER LIST |
Case No. CI-24-01678
| RICHARD TAYLOR | Plaintiff |
| v | |
| SAVOIR-FAIR INTERIOR LININGS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2025 | |
DATE OF RULING: | 21 November 2025 | |
CASE MAY BE CITED AS: | Richard Taylor v Savoir-Fair Interior Linings Pty Ltd (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1697 | |
REASONS FOR RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Pleadings – application for leave to amend pleading to include breach of manual handling regulations – whether plaintiff’s task constitutes hazardous manual handling
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Occupational Health and Safety (Prevention of Falls) Regulations 2003; Part 3.1 – Hazardous Manual Handling Occupational Health and Safety Regulations 2007; Civil Procedure Act 2010
Cases Cited: Deal v Kodakkathanath [2016] HCA 31; Harvey v Methodist Ladies College [2008] VSC 425; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Haidari v Victorian Workcover Authority & Ors (Ruling) [2024] VCC 661; Rascovici v Think Laser Pty Ltd [2025] VCC 1554; ABL Nominees Pty LTD v McKenzie (No 2) [2014] VSC 529; Aon Risk Services Australia v Australian National University (2009) 239 CLR 175; Dare v Pulham (1982) 148 CLR 658; Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786
Ruling: Leave granted to amend the statement of claim
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr M Hooper SC & Ms A Capasso | Lander & Rogers |
HER HONOUR:
Introduction
1 This is the second application brought by the plaintiff to amend the statement of claim. The application was supported by an affidavit affirmed by the plaintiff’s solicitor Mr Nick Korkliniewski on 22 October 2025. The defendant relies on an affidavit sworn by its solicitor Ms Lillian Rizkalla on 23 October 2025.
Factual background
2 The plaintiff was employed by the defendant as a plasterer during May 2018 and alleges in this proceeding that he suffered injuries on or about 7 May 2018.
3 The plaintiff made two serious injury applications pursuant to s328 of the Workplace Injury Rehabilitation & Compensation Act 2013 (‘the Act’). The first application was in respect of injury alleged to have occurred on 18 May 2018 for injury to the left foot, left lower leg, left knee and lower left extremity (‘the first application’).
4 The second application was for injury to the right shoulder, upper right arm, upper left extremity as well as chronic pain and/or complex regional pain syndrome and anxiety and depression which he alleged occurred on 7 May 2018 (‘the second application’).
5 The defendant rejected both applications.
6 The plaintiff issued Originating Motions seeking leave from this Court to pursue damages in respect of both applications.
7 On 13 November 2023, the defendant granted the plaintiff a serious injury certificate pursuant to s335(2)(c) of the Act in respect of the second application and the plaintiff withdrew the first application.
8 The plaintiff’s proposed common law claim in respect of the second application did not resolve following the statutory conference and this damages proceeding was issued.
9 What followed was a dispute as to whether the plaintiff’s statement of claim could encompass the left lower leg/ankle injury which occurred on 18 May 2018, as an injury consequential to that which occurred on 7 May 2028 and whether the Occupational Health and Safety (Prevention of Falls) Regulations 2003 (‘Prevention of Falls Regulations’) applied to the circumstances of injury alleged on 7 May 2018.
10 This led to my first ruling on 5 June 2025 that:
(a)The plaintiff could rely on a pleading of injury sustained on 18 May 2018, as a natural and probable consequence of injury sustained on 7 May 2018, in respect of which there was a grant of serious injury, in accordance with the principles set in the decisions of Harvey v Methodist Ladies College[1] and Kruisselbrink v Nationwide Maintenance Services Pty Ltd.[2]
(b)I struck out the paragraphs in respect of the Prevention of Falls Regulations as I held that they did not apply to the facts of the case.
[1][2008] VSC 425
[2][2010] VSC 260
11 Following my ruling, the plaintiff served the proposed amended statement of claim on the defendant on 12 September 2025 which included the following relevant paragraphs:[3]
[3]Affidavit of Nick Korkliniewski affirmed 22 October 2025 6-9
“6. The Plaintiff sustained injuries on or about the said date as a result of falling from a
ladderwork platform during the course of his employment with the Defendant (“the 7 May 2018 incident”).PARTICULARS OF THE 7 MAY 2018 INCIDENT
(a)The Plaintiff fell from a trestle platform (“the work platform”) whilst hanging plaster sheets.
(b) The work platform was approximately 900mm high and had no handrails.
(c)The work platform was located in the vicinity of a stack of plaster sheets (“the stack of plaster sheets”).
(d)The stack of plaster sheets was approximately the same and/or similar height as the platform.
(e) The majority of plasterboards in the stack of plaster sheets were approximately 4.8 metres in length.
(f) Two plaster boards placed on the top of the stack of plaster sheets were approximately six meters long and overhanging the stack by approximately 12mm.
(g)The Plaintiff lost his balance whilst working on the platform whilst working on the platform as a result of being required to navigate past the stack of plasterboards.
(h)The Plaintiff lost his balance and instinctively stepped on the top of the stack of plaster boards in an attempt to steady himself.
(i) The Plaintiff stepped on the overhanging section of the top, six meter plaster boards which inevitably collapsed causing him to fall.
…
9.The injuries sustained by the Plaintiff as a result of the 7 May 2018 incident
along with thealso resulted in the injuries sustained on 18 May 2018 as a natural and probable consequence of the initial right shoulder injury. incident result from and/orThe claimed injuries were caused by the act of default, omissions and/or negligence of the Defendant, its servants and/or agents as a single cause of action in the course of the Plaintiff’s employmentbetweenon 7 May 2018up to and including 18 May 2018.…
9A.Further, and in the alternative, the Plaintiff’s initial injury was caused by reasons of the breach of the Defendant of its duties imposed by the Occupational Health and Safety Regulations 2017 (Vic) (“the OHS Regulations”).
i.Regulation 26 requiring hazard identification, given that the Plaintiff was situated on the work platform undertaking his employment tasks constituting hazardous manual handling, whilst holding/pressing firmly into place plaster sheets with his left hand and drilling them into the ceiling joists with his right hand.
ii.Regulation 27 requiring the control of risk, so far as is reasonably practicable, to eliminate any risk of a musculoskeletal disorder with hazardous manual handling, in particular the failure by the Defendant to alter the system of work and provide the Plaintiff with mechanical aids, such as an internal scissor lift with guard rails;
iii.Regulation 28 requiring the review of risk control measures, the failure by the Defendant to undertake a review of any measures including but not limited to the placement of the plaster boards, the hazardous manual handling undertaken by the plaintiff whilst atop the work platform whilst performing his employment duties.”
12 The defendant objected to the proposed amendment, in particular paragraph 9A on the following basis:
(a)It was not in accordance with my ruling;
(b)Further or alternatively, the plaintiff sought to rely on a cause of action that was not supported by material facts; and
(c)Further or alternatively, the plaintiff sought to rely on a cause of action that was bound to fail. The defendant contended the manual handling Regulations under the Occupational Health and Safety Regulations 2017 were not engaged given the plaintiff suffered a fall injury, and as such, the risk of injury was not associated with manual handling.
13 The plaintiff made application to file the proposed statement of claim which came before me on 27 October 2025.
14 The defendant did not take issue with the proposed paragraph 9. The real issue was the proposed paragraph 9A, and it submitted that the pleadings remained incomplete as they did not identify the material facts necessary to determine whether the plaintiff was engaged in hazardous manual handling for the regulations to apply.
15 The relevant parts of the Occupational Health and Safety Regulations 2017 provide (notes omitted):[4]
[4]Occupational Health and Safety Regulations 2017 regs 5, 26-28
“5 Definitions
…
musculoskeletal disorder means an injury, illness or disease that arises in whole or in part from hazardous manual handling, whether occurring suddenly or over a prolonged period, but does not include an injury caused by crushing, entrapment or cutting resulting primarily from the mechanical operation of plant”
Part 3.1 – Hazardous manual handling
“26 Hazard identification
An employer must, so far as is reasonably practicable, identify any hazardous manual handling undertaken, or to be undertaken, by an employee.
…
27 Control of risk
(1) An employer must, so far as is reasonably practicable, eliminate any risk of a musculoskeletal disorder associated with hazardous manual handling.
(2)If it is not reasonably practicable to eliminate a risk of a musculoskeletal disorder associated with hazardous manual handling, the employer must reduce the risk so far as is reasonably practicable by—
(a) altering—
(i) the workplace layout; or
(ii) the workplace environment, including heat, cold and vibration; or
(iii) the systems of work which involve hazardous manual handling; or
(b)changing the things used in the hazardous manual handling; or
(c) using mechanical aids; or
(d)combining any of the risk control measures
(3)If the employer has complied with subregulations (1) and (2) so far as is reasonably practicable and a risk of a musculoskeletal disorder associated with hazardous manual handling remains, the employer must reduce the risk so far as is reasonably practicable by using information, instruction or training.
(4) The employer may only rely solely or primarily on the use of information, instruction or training to control a risk of a musculoskeletal disorder associated with hazardous manual handling if none of the measures set out in subregulation (2) is reasonably practicable.
(5) Without affecting the generality of subregulations (1), (2), (3) and (4), the employer, when determining any measure to control a risk of a musculoskeletal disorder associated with hazardous manual handling, must take into account the following—
(a) postures;
(b) movements;
(c) forces;
(d) duration an frequency of the hazardous manual handling;
(e) environmental conditions including heat, cold and vibration that act directly on a person undertaking hazardous manual handling.
28 Review of risk control measures
(1) An employer must review and, if necessary, revise any measures implemented to control risks under regulation 27—
(a) before any alteration is made to any thing, process or system of work involving hazardous manual handling, including a change in the place where that work is undertaken; or
(b) if new or additional information about hazardous manual handling becomes available to the employer; or
(c) if an occurrence of a musculoskeletal disorder at a workplace is reported by or on behalf of an employee; or
(d) after any incident occurs to which Part 5 of the Act applies that involves hazardous manual handling; or
(e) if, for any other reason, the risk control measures do not adequately control the risks; or
(f) after receiving a request from a health and safety representative.”
16 The defendant submitted that even if the manual handling task that the plaintiff was engaged in was hazardous, the plaintiff had completed the task before he walked onto the platform and over the trestle. The defendant referred to the plaintiff’s affidavit affirmed on 3 November 2022 in support of his serious injury application in which he deposed as follows:[5]
“THE INCIDENT
14.The incident occurred on 7 May 2018 when I sustained significant injuries to my right shoulder after falling from a trestle work platform ("the work platform"). I had just finished hanging a small strip of plaster shortly prior to the incident.
15. The work platform did not have any handrails. It was close to a stack of plasterboards that were approximately the same height as the work platform. Two sheets of plaster boards that were longer than the rest had been placed on the top of the stack of plasterboards, overhanging by 1200mm and were unsupported.
16. I lost my balance as I walked over the trestle and I instinctively stepped on the top plasterboard as a way of steadying myself. Unfortunately, this was one of the longer pieces of plasterboard and had no support. The plasterboard snapped causing me to fall.”
[5]Affidavit of Lillian Rizakalla sworn 23 October 2025 at 7
17 Mr Hooper also referred to histories the plaintiff gave in relation to circumstances of injury to Dr Clayton Thomas, Dr Noam Winter and Mr Michael Dooley to support his submission that the plaintiff was no longer carrying the plaster sheets when he fell.
18 Based on the pleaded facts, Mr Hooper submitted that the plaintiff could not establish that the risk of musculoskeletal disorder arose from the hazardous manual handling and he referred the Court to the decisions of Deal v Kodakkanthanath[6] and Haidari v Victorian Workcover Authority (Ruling).[7]
[6][2016] HCA 31 (‘Deal’)
[7][2024] VCC 661 (‘Haidari’)
19 The High Court in Deal considered whether the appellant, a teacher who fell from a step ladder whilst removing paper mâché displays from a pin board, was engaged in hazardous manual handling and whether the risk of musculoskeletal disorder was of the kind that could properly be conceived as a risk “associated with” the hazardous manual handling task.
20 The defendant submitted that “associated with”, as found in the High Court, depended on the risk of musculoskeletal disorder being caused by something that is intrinsic to the hazardous manual handling task. Given that at the time of injury, the plaintiff had completed the task he was performing and was walking onto the platform, there was no correlation between the hanging of the plaster and the fall.
21 The plaintiff’s counsel maintained that as the plaintiff was a plasterer, engaged in plastering and in the process of hanging plaster when he suffered injury, the regulations applied. The manual handling task was broadly connected as he was carrying out the tasks whilst standing on the trestle. I was referred to paragraphs 66 and 67 in Deal, emphasising that the injury was causally related to the manual handling, as undertaking duties on a platform and subsequently falling constituted hazardous manual handling.
22 I expressed the view that the proposed pleadings were general and did not identify the work process and the activity the plaintiff was engaged in at the time of injury. The pleadings did not identify whether the plaintiff was carrying or handling plaster or tools or anything connected to the performance of the work task at the time of the fall. Plaintiff’s counsel agreed that the pleadings could be “fleshed out”. Therefore, I adjourned the application to 17 November 2025 to give the plaintiff an opportunity to amend the proposed paragraph 6.
23 The plaintiff served a further proposed amended statement of claim dated 13 November 2025, which contained the following:
““6. The Plaintiff sustained injuries on or about the said date as a result of falling from a
ladderwork platform during the course of his employment with the Defendant (“the 7 May 2018 incident”).PARTICULARS OF THE 7 MAY 2018 INCIDENT
(a)The Plaintiff fell from a trestle platform (“the work platform”) whilst hanging plaster sheets. Further, the Plaintiff, at the time, was attaching plaster sheets to the ceiling, holding/pressing the sheet firmly in place with his left hand whilst drilling the sheet into the ceiling joists with his right hand as he moved along the work platform.
(b) The work platform was approximately 900mm high and had no handrails, or guard rails.
(c)The work platform was located in the vicinity of a stack of plaster sheets (“the stack of plaster sheets”).
(d)The stack of plaster sheets was approximately the same and/or similar height as the platform.
(e) The majority of plasterboards in the stack of plaster sheets were approximately 4.8 metres in length.
(f) Two plaster boards placed on the top of the stack of plaster sheets were approximately six meters long and overhanging the stack by approximately 12mm.
(g)The Plaintiff lost his balance whilst working on the platform, looking upwards, holding/pressing the plasterboard firmly in place with his left hand and drilling at intervals with his right hand, and as a result of being required to navigate past the stack of plasterboards, as he was continuing his work duties.
(h)The Plaintiff lost his balance and instinctively stepped on the top of the stack of plaster boards in an attempt to steady himself.
(i) The Plaintiff stepped on the overhanging section of the top, six meter plaster boards which inevitably collapsed causing him to fall.”
At the hearing of the application on 17 November 2025, the defendant relied on its previous submissions and made further submissions. The defendant also conceded that the new version pleaded a hazardous manual handling task, but it maintained that the risk of injury suffered in the fall was not a risk involved in or “associated with” the task of handling the plaster sheet. The revised pleadings continued to obscure any connection between the performance of the task of drilling or holding the plaster sheet or whether the plaintiff was walking on the trestle whilst doing so. The defendant submitted it would not be possible to move along the platform whilst in the process of drilling and holding the plaster. The plaintiff was not engaged in the task of drilling when he fell. Therefore, the plaintiff’s injury was not associated with a manual handling task.
The defendant anticipated that the plaintiff would rely on a decision of his Honour Judge Ginnane in Rascovici v Think Laser Pty Ltd (Ruling)[8] in support of a submission that the application of the regulations ought to be left as an issue at trial. This, the defendant submitted, would not be in keeping with the principles of the Civil Procedure Act 2010, as addressing the issue at trial would be a waste of resources and time.
[8][2025] VCC 1554 (‘Rascovici’)
The plaintiff submitted that the plaintiff was undertaking the task of handling plaster as particularised, he was moving along the platform and as he was continuing to do this task, he fell. He was engaged in the task of hazardous manual handling at the time of the fall. The histories reported to doctors, and what was deposed to in the affidavit, are a matter of evidence, reserved for trial. The regulations were properly pleaded, and the plaintiff should be permitted to rely on them. It is a matter for the trial judge on the evidence given, to determine whether the regulations ultimately apply.
Discussion
The power to grant leave to amend must be exercised in a way that promotes the Court’s overarching purpose to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. Derham AsJ in ABL Nominees Pty LTD v McKenzie (No 2) summarised the principles as follows:[9]
(a)The power to amend in rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2005 authorises the Court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings;
(b)An amendment which is futile because it is obviously bad in law will not be allowed;
(c)If the proposed amendment would be liable to be struck out if it was an original pleading, either because it is bad in law or defective as a pleading, then leave to file it will not be allowed;
(d)The test is best expressed in the words of s63 of the Civil Procedure Act 2010 that if the amendment has no real prospect of success at trial, that would be a highly relevant factor in the exercise of the discretion to refuse the application;
(e)Limits on re-pleading take into account the factors identified by the High Court in Aon Risk Services Australia v Australian National University.[10]
[9][2014] VSC 529 at [17]-[20].
[10](2009) 239 CLR 175
The issue I am required to determine is whether the risk of musculoskeletal injury to the plaintiff was intrinsic to or “associated with” the manual handling task he was performing. The High Court said in Deal:[11]
“Fourthly, and more generally, if the reach of reg 3.1.2 were not so limited, it would have the relatively remarkable consequence that any musculoskeletal disorder suffered in the course of performing a hazardous manual handling task in the workplace might fall within reg 3.1.2, regardless of the cause of the musculoskeletal disorder. For example, it might include the risk of an office worker whose job it is many times a day (and thus repetitively) to replenish the paper supply in a photocopier, slipping or falling on a greasy floor while carrying a single ream of A4 copy paper to the photocopier, in circumstances where the carriage of the copy paper in no way contributes to the fall. Similarly, it might include the risk of an employee furniture removalist being struck by a passing motor car while removing a heavy load from the back of a parked furniture van, in circumstances where the fact that the load is heavy in no way contributes to the exposure of the employee to the oncoming path of the motor car. Although a risk of either kind is such that an employer may otherwise be required to foresee it and, to the extent that is reasonably practicable, take care to guard against it (for example, under the general duty to provide a working environment that is safe and without risks to health in accordance with s 21 of the Act), it forces language to describe a risk of either kind as one of musculoskeletal disorder arising in the workplace associated with that hazardous manual handling task. In each case, the cause of the accident is extraneous to the task (30) and the fact that the worker was undertaking a hazardous manual handling task at the time of the accident was mere coincidence. According to ordinary acceptation, the risk of the fall in the first example would be said to be associated with the dangers of a dirty floor rather than carrying the copy paper and the risk of the impact in the second example would be said to be associated with the dangers of working in close proximity to passing motor cars rather than carrying a heavy load.
…
As was earlier noticed, it is not in dispute that the task of taking down the displays with the use of the step ladder was a hazardous manual handling task. It involved manual handling of unstable or unbalanced loads or loads that were difficult to grasp or hold. Nor did the respondent contend that the jury could not have found that the instability or imbalance or difficulty of grasping or holding the displays caused the appellant to miss her step on the step ladder and thereby caused the musculoskeletal disorder which she alleged. On that basis, it would have been open to the jury to find that the risk of the appellant falling from the step ladder as she did in the course of carrying out the hazardous manual handling task of removing displays from a pin-board with the use of a step ladder was a risk of musculoskeletal disorder “associated with” that hazardous manual handling task within the meaning of regs 3.1.1 and 3.1.2.”
[11]Deal at [46]
29 The plaintiff particularises the activity he was undertaking in paragraph 6(a) of the proposed statement of claim thus:
“The Plaintiff fell from a trestle platform (“the work platform”) whilst hanging plaster sheets. Further, the Plaintiff, at the time, was attaching plaster sheets to the ceiling, holding/pressing the sheet firmly in place with his left hand whilst drilling the sheet into the ceiling joists with his right hand as he moved along the work platform.”
30 Paragraph 6(g) states:
“The Plaintiff lost his balance whilst working on the platform, looking upwards, holding/pressing the plasterboard firmly in place with his left hand and drilling at intervals with his right hand, and as a result of being required to navigate past the stack of plasterboards, as he was continuing his work duties.”
31 Although “at the time” is not defined in paragraph 6(a), it must refer to the time that the plaintiff:
(a)Was attaching plaster sheets to the ceiling;
(b)Holding and pressing the sheets firmly in place with his left hand whilst drilling the sheet onto the ceiling joists with the right hand as he was moving along the work platform; and
(c)Fell from the work platform.
32 At paragraph 6(g) the plaintiff alleges he was looking upwards, holding or pressing the plasterboard firmly in place with his left hand and drilling at intervals with his right hand, and as he was required to navigate past a stack of plasterboards, he lost his balance whilst working on the platform. One can infer that reference to navigating past the plasterboards required him to move along the trestle platform.
33 The risk of the fall from the trestle platform, based on those pleadings, could be seen to be associated with the dangers of handling and pressing the sheets with the left hand whilst drilling, as the plaintiff was looking up whilst performing the task and moving along the trestle platform.
34 The Court in Deal stated that it was the manner in which the appellant performed the task whilst standing on the step ladder, as opposed to the generic nature of the task, which caused the fall. Simply because there were a number of possible ways in which she could have carried out the task of removing the displays with the use of the step ladder, the employer could not escape responsibility by identifying that there was one or even a number of ways of carrying out the task which did not attract such risks.
35 Whilst the pleadings do not define “work duties” in paragraph 6(g) and the defendant submitted that it was not possible for the plaintiff to move along the platform whilst drilling and holding the plaster sheets, I do not agree that such a scenario is not possible and that may well be the plaintiff’s evidence. The purpose of pleadings and particulars are to provide a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it and to define the issues for decision in the litigation, thereby enabling the relevance and admissibility of evidence to be determined at trial.[12] It is trite to say that it is not necessary in the pleadings to set out all the evidence which may prove the facts pleaded. I find that the proposed pleadings are adequate as they outline the essential factual circumstances of the injury. The plaintiff’s sworn affidavit and histories to doctors will no doubt provide the defendant ample fodder for cross-examination at trial and whether he can ultimately have the benefit of the regulations, will be a question for the trier of fact.
[12]Dare v Pulham (1982) 148 CLR 658 at 664
36 On her Honour Judge Clayton’s analysis in Haidari, there was nothing intrinsic to the task of manual handling in which the plaintiff was engaged in, that was the cause of the injury. The plaintiff was returning empty-handed to pick up the next load of plasterboard and he was, at its highest, preparing to undertake hazardous manual handling tasks. Her Honour held that engaging in part of the process of preparing to handle the load or going back to collect plasterboard was not enough, and injury had to occur whilst engaged in the physical act of handling or in movement functionally inseparable from it. Preparatory or transitioning movements like walking into position did not meet the threshold.
37 That is not the case here. Based on the pleadings, it is open for the plaintiff to adduce evidence that the activity he was engaged in was not simply preparatory or transitioning from one activity to the next. The pleadings outline sufficiently the hazardous manual handling activity that he alleges he was performing whilst moving along the trestle platform.
38 In Rascovici, Ginnane J heard evidence from the plaintiff together with cross-examination in order to understand the factual matrix of the injury and if it attracted the benefit of the relevant regulations. Ginnane J referred to Cavanough J’s ruling in Meade v Nillumbik Australia Pty Ltd & Anor (Ruling),[13] which was a case involving a plaintiff given leave to amend his statement of claim to allege breaches of the Occupational Health and Safety Regulations 2017, and the defendant renewed its objection at trial that the regulations did not apply. Cavanough J entertained the defendant’s renewed application at trial because he took the view that when leave was granted to amend, the Court was only concerned with and decided the application before it and it was enough for the purpose of the application that the proposed amendment was not futile. Cavanough J on the other hand had to determine in a final way whether the plaintiff’s claim based on the regulations should be permitted to go before the jury. Hence, the defendant was entitled to renew its submission.
[13] [2019] VSC 786
39 I am not persuaded that the proposed amendment is futile. By granting an amendment at this stage, the defendant is not precluded at trial in asserting that as a matter of law, the plaintiff cannot establish a breach of the relevant regulations. Determining whether there is sufficient evidence for the plaintiff to establish a breach should not be undertaken at this interlocutory stage where I am only required to be satisfied of the matters referred to in paragraph 27 of my ruling.
40 I am of the view that the pleadings in this instance are adequate. It will be a matter of evidence as to whether the plaintiff can establish a breach of the regulations. The proposed amendment is not futile nor bad in law and I will grant leave for the proposed amendment to the statement of claim to be filed.
41 I invite the parties to submit draft orders consistent with my ruling.
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