Roza v Victorian WorkCover Authority and Sakata Rice
[2011] VCC 295
•3 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-05317
| VESNA ROZA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| SAKATA RICE SNACKS AUSTRALIA PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 February 2011 |
| DATE OF JUDGMENT: | 3 March 2011 |
| CASE MAY BE CITED AS: | Roza v Victorian WorkCover Authority and Sakata Rice Snacks Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 295 |
REASONS FOR JUDGMENT
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Catchwords: Application of s.134ABA(b) of Accident Compensation Act 1985 – Applicability of serious injury “gateway” where non-employer defendant – Limitation of Actions Act 1958, s.23A – Martin v Bailey [2009] VSCA 263; Repco Corporation Ltd v Scardamaglia1996] 1 VR 7; Tsiadis v Patterson (2001) 4 VR 114; Millard v State of Victoria [2006] VSCA 29.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A W Ingram | Patrick Robinson & Co |
| For the First Defendant | Mr B R McTaggart | Lander & Rogers |
| For the Second Defendant | Mr W C Grainger | Norris Coates |
| HIS HONOUR: |
1 This is the hearing of two Summonses. Firstly, by Summons dated 12 October 2010, the second defendant seeks to have the plaintiff’s Summons struck out pursuant to Rule 23.02 as an abuse of process. On the hearing of this Summons, I gave leave to the second defendant to amend its Summons to base its application alternatively on s.62 of the Civil Procedure Act 2010. Secondly, the plaintiff issued a Summons dated 4 February 2011 seeking that the period within which the plaintiff may bring action pursuant to s.134AB of the Accident Compensation Act 1985 (“the ACA”) be extended pursuant to s.23A of the Limitation of Actions Act 1958 (“LAA”) to seven years from the date on which the cause of action accrued.
2 Following the hearing on 8 February 2001, I received the following written submissions:
• From Mr Ingram dated 8 February 2011 • From Mr McTaggart dated 8 February 2011 • From Mr Grainger dated 14 February 2011 • From Mr Ingram dated 16 February 2011 • From Mr Grainger dated 16 February 2011. 3 The basis of the second defendant’s application was that this proceeding was statute barred. It was therefore convenient to deal with the plaintiff’s application firstly.
4 On 13 December 2001, the plaintiff was employed by Tesa Group Pty Ltd at the premises of the second defendant. It is not in issue that on that day she was injured when her right arm contacted a steel bar on machinery (“the accident”). Tesa Group Pty Ltd is now deregistered and hence the Victorian WorkCover Authority was substituted for it as first defendant. On 8 December 2008, the Writ in this proceeding was issued, just short of seven years after the accident.
5 Mr Ingram, who appeared for the plaintiff, submitted at the outset that the plaintiff’s application was unnecessary and was only brought out of an abundance of caution. He sought to rely upon s.134ABA of the ACA which reads:
“134ABA Calculation of limitation of actions period
For the purpose of calculating the period of time under the Limitation of Actions Act 1958 within which proceedings permitted by, and in accordance with, section 134AB may be commenced on or after the commencement of section 9 of the Accident Compensation Legislation (Amendment) Act 2004, the following periods of time are to be disregarded—
(a) if the degree of permanent impairment of the worker resulting from the injury is to be determined, the period of time commencing on the day a claim for compensation under section 98C or 98E is lodged and ending 30 days after—
(i) the Authority or self-insurer advises the worker of the determination under section 104B(2); or (ii) the Authority or self-insurer notifies the worker of the decision of the Medical Panel— whichever is applicable;
(b) if the worker elects to make an application under section 134AB(4), the period of time commencing on the day on which the application is made and ending on the day on which proceedings are commenced in accordance with section 134AB(12)(e).”
6 He originally sought to rely upon paragraph (a) but then changed his stance to rely on paragraph (b).
7 Paragraph (b) states that time does not run for the purposes of the six-year limitation period provided for in s.5(1)(a) of the LAA for actions founded on tort for the period set out there. In effect, time does not run against the plaintiff once application is made under s.134AB(4).
8 It is not in issue that the plaintiff lodged her application under s.134AB(4) on 11 March 2008. Her application is dated 22 November 2007. Mr Ingram submitted that the application was “made” on the date of signing the application, 22 November 2007. If this were so, the Writ issued on 8 December 2008 would have been issued within the six-year limitation period. It seems clear to me however that the mere signing of the application under s.134AB(4) is not the making of the application and this rather requires some communication with the Victorian WorkCover Authority. Section 134AB(5)(b) of the ACA suggests, and commonsense dictates, that there must be communication with the Authority before an application can be said to be “made”.
9 As I have not accepted the plaintiff’s submission, the Writ was issued three months less two days outside the six-year limitation period, after taking into account the provisions of s.134ABA(b). Mr Grainger, who appeared for the second defendant, submitted that the serious injury “gateway” provisions contained in s.134AB of the Act did not apply to the second defendant as it was not the employer of the plaintiff. If this were so, proceedings could have been issued against the second defendant at any time and the Writ in this proceeding would have been issued not a mere three months and two days outside the six-year limitation period but five days less than one year outside the six-year limitation period.
10 The short answer to Mr Grainger’s submission is contained in paragraph 42 of Martin v Bailey [2009] VSCA 263, per Redlich JA:
“It is now settled by a line of authority commencing with Kidman v Sefa and followed in Farrar v Western Metropolitan College of Tafe, Victoria v Robertson and Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd, that where a worker suffers injury arising out of or in the course of their employment after 1 December 1992, the worker cannot maintain proceedings against a non-employer defendant to recover damages for such injuries without satisfying the pre-requisites of s 135A of the Act and that is so even if the non-employer defendant is the only defendant. That is to say a defendant who is not in any way connected to the worker’s employment is entitled to insist upon the worker’s compliance with the Act as a prerequisite to the commencement of common law proceedings. I assume that because of the similarities in the language of ss 134AB and 135 it has been accepted by the parties that if the injury to the plaintiff arose out of or in the course of his employment the plaintiff must in the present case also pass through the serious injury gateway prescribed in s 134AB notwithstanding that the only defendant was not connected to the plaintiff’s employment.”
11 I turn to consider whether the time for issue of the Writ in this proceeding should be extended.
12 In considering whether to exercise my discretion pursuant to s.23A(2) of the LAA, I take account of the matters referred to in s.23A(3) of the LAA and note s.23A(4)(b) of the LAA.
13 I note the approach to be taken to an application such as this as set out in cases such as Repco Corporation Ltd v Scardamaglia1996] 1 VR 7 and Tsiadis v Patterson (2001) 4 VR 114 and cases referred to therein. I note that the plaintiff bears the onus of persuading me that it is just and reasonable to extend the limitation period – see Tsiadis, at page 123.
14 Mr Ingram relied upon the following matters:
•
The plaintiff was obliged to act in accordance with the statutory scheme and the Writ filed on 8 December 2008 was filed in accordance with the time limits provided for in that scheme. The plaintiff had no cause of action until she satisfied the “gateways” requirements of s.134AB of the Act – see Millard v State of Victoria [2006] VSCA 29, per Mandie J, with whom Chernov and Ashley JJA agreed;
•
The second defendant was aware that the plaintiff had submitted a Claim for Compensation arising from injuries sustained at its premises and using its machinery from the outset because the plaintiff inadvertently named the second defendant as her employer in her Claim for Compensation lodged on 20 December 2001 and later advised the second defendant that she had submitted a new claim which letter the second defendant received on 18 February, 2002;
•
It was necessary for the plaintiff to obtain a stabilised medical condition and medical evidence relevant to her assessment of permanent impairment prior to lodging her serious injury application on 11 March 2008;
•
The fact of permanent impairment being assessed is determinative of a permanent disability suffered by the plaintiff;
• There is no prejudice to the second defendant for the following reasons:
ƒ The second defendant was able to answer detailed Interrogatories
on 5 March 2010 without any suggestion of prejudice;ƒ
The second defendant’s Affidavit of Documents sworn 19 January, 2010 discovering, inter alia, OHS brochures, manuals, induction procedures and training manuals in existence in 2001; the labour hire contract between the first defendant and the second defendant; the plaintiff’s Claim for Compensation notifying it of the plaintiff’s injury; incident notification procedure form; and health and safety policy form;
• In conformity with s.134AB(5A) of the Act, on 1 September 2008, the second defendant was served with a copy of the plaintiff’s serious injury application, including an affidavit sworn 22 November 2007 by the plaintiff and medical reports then available as to the plaintiff’s injuries. 15 A further matter, of course, is that the plaintiff seeks less than three months’ extension for the period within which the writ was to be issued.
16 So far as prejudice to the second defendant is concerned, Steven Ronald Weybury, the second defendant’s solicitor, in an affidavit sworn 12 October 2010, relies upon the following matters as indicating prejudice to the second defendant:
• The accident occurred over nine years ago; • The plaintiff has not identified any witnesses to the accident; •
The supervisor to whom the plaintiff alleges that she reported the accident first became aware of the plaintiff’s claim when contacted by an investigator in 2009. She has no recollection of the plaintiff nor of the accident;
•
The packing line at the second defendant’s premises has been altered considerably since December 2001;
•
Records relating to the design of the machinery and maintenance prior to December 2001 and prior to 2006 are no longer available;
•
Documents relating to health and safety standards, induction procedures and training as at December 2001 have been lost or destroyed;
•
The second defendant no longer has records of its employees at December 2001. It is therefore unable to identify relevant witnesses to the accident.
17 Weybury also deposes that the second defendant has been unable to carry out investigations in relation to medical issues concerning the plaintiff. It has however obtained access to the first defendant’s files. On 18 February 2002, less than two months after the accident, a claim was made under the ACA against the first defendant and on 20 March 2003, an impairment benefits claim was submitted pursuant to s.98C of the Act. It has also obtained access to medical material going back to mid-2002, subpoenaed by the first defendant.
18 In all the circumstances, despite possible prejudice to the second defendant, on balance, I consider it just and equitable to extend the period for the issue of the writ in this proceeding to 8 December 2008.
19 In the circumstances, I dismiss the second defendant’s Summons issued 12 October 2010.
20 I will hear from the parties on the question of costs and appropriate orders to make for the future conduct of this matter.
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