Taylor v Savoir-Faire Interior Linings (Ruling)
[2025] VCC 51
•5 June 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-FAIRE INTERIOR LININGS | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2025 | |
DATE OF RULING: | 5 June 2025 | |
CASE MAY BE CITED AS: | Taylor v Savoir-Faire Interior Linings (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 51 | |
REASONS FOR RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Circumstances giving rise to serious injury action – Application to amend Statement of Claim – Ambit of serious injury certificate granted pursuant to s328 of the Workplace Injury Rehabilitation & Compensation Act 2013 – Arguable that amendment would not introduce a new of separate cause of action – Serious injury – Pleadings – Amendment – Entitlement to sue – Certificate granted by Authority
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Karatzidis v Victorian Railways Commissioners [1971] VR 360; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Bell Radiology (A Firm) v McGraw (Unreported, VSC, 31 July 1995, 1 August 1995, 7 February 1995, Tadgell, Ormiston and Callaway JJA); Georgopoulos v Silaforts Painting Pty Ltd & Anor [2012] VSCA 179; Harvey v Methodist Ladies College [2008] VSC 425 Warwick Gilford v Freshmore (Vic) Pty Ltd [2012] VSC 191; Brambles v Wail [2002] VSCA 166
Ruling: Defendant’s application granted
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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
1This is an application by the plaintiff to amend the statement of claim and a strike out application by the defendant. The central issue concerns the scope of the grant of a serious injury certificate by the Victorian WorkCover Authority (“the VWA”) to the plaintiff.
2The application was supported by an affidavit affirmed by the plaintiff’s solicitor Mr Nick Korkliniewski on 11 November 2024. The defendant relies on an affidavit sworn by its solicitor Ms Lillian Rizkalla on 12 November 2024.
3Both parties filed written submissions with the Court.
Factual background
4The plaintiff was employed by the defendant as a plasterer during May 2018.
5On 19 July 2022, the plaintiff made a serious injury application pursuant to s328 of the Workplace Injury Rehabilitation & Compensation Act 2013 (“the Act”) for injury to his left foot, left lower leg, left knee and lower left extremity which he alleged occurred on 18 May 2018 (‘the first application’). The first application was accompanied by documentation including the plaintiff’s affidavit affirmed on 27 June 2022,[1] medical reports and a draft statement of claim.[2]
[1] Affidavit of Lillian Rizkalla sworn 12 November 2024 (‘LRA’) 12-16
[2]Ibid 17-20
6In the affidavit the plaintiff affirmed that the application was for leave to bring common law proceedings as a result of injuries he sustained to his lower left leg and foot in an incident on 18 May 2018, during the course of his employment with the defendant. The affidavit also referred to the plaintiff having suffered injury to the right shoulder during the course of his employment in the incident occurring on 7 May 2018.[3] The draft statement of claim alleged that the plaintiff suffered injuries on or about 18 May 2018 as a result of falling from a ladder during the course of his employment, due to the defendant’s negligence or alternatively breach of the defendant’s duties imposed by the Occupational Health & Safety Regulations 2017 (Vic) (‘the OHS Regulations’).[4]
[3] LRA 12
[4] Ibid 17
7On 15 November 2022, the defendant rejected the plaintiff’s first application.
8On 16 November 2022, the plaintiff issued an Originating Motion seeking leave from this Court to pursue damages in respect of the first application.
9On 18 January 2023 the plaintiff made a further serious injury application pursuant to s328 of the Act for injury to his 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’). The second application was accompanied by documentation including the plaintiff’s affidavit affirmed on 3 November 2022,[5] medical reports and a draft statement of claim.[6]
[5] Ibid 40-51
[6] Ibid 35-39
10The plaintiff’s affidavit was in support of his application for leave to bring common law proceedings as a result of injuries sustained to his right shoulder on 7 May 2018. The plaintiff deposed that he had lodged a separate application for a serious injury certificate arising from injuries he sustained to his left lower leg and foot incident which occurred on 18 May 2018.[7] The statement of claim contained allegations of injury to the right shoulder in an incident on 7 May 2018 as a result of the defendant’s negligence or breach of the OHS Regulations.[8]
[7] LRA 40
[8] Ibid 37-38
11On 18 May 2023, the defendant rejected the plaintiff’s second application.
12On 19 May 2023, the plaintiff issued an Originating Motion seeking leave from this Court to pursue damages in respect of the second application.
13Both Originating Motions were listed to be heard together and fixed for hearing on 5 December 2023.
14On 13 November 2023, the plaintiff was granted a serious injury certificate pursuant to s335(2)(c) of the Act in respect of the injuries claimed in the second application.
15The serious injury certificate was in the following terms:[9]
“For the purposes of section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Act), the Victorian WorkCover Authority certifies in respect of Richard Taylor that:
1. it is satisfied that the injury alleged to have been sustained in the circumstances referred to in paragraph 6 of the proposed Statement of Claim submitted with the application herein made under sub-section 328(2) is a serious injury within the meaning of Section 325(2)(b)(i) and (ii) of the Act; and
2. subject to compliance with section 333 of the Act, consent is given pursuant to Section 335(2)(c) of the Act for Richard Taylor to bring proceedings for the recovery of pain and suffering and pecuniary loss damages as a result of that injury alleged to have occurred in the circumstances referred to in paragraph 6 of the said Statement of claim.”
[9]Ibid 65
16The plaintiff withdrew the first application.
17On 16 November 2023, this Court made orders dismissing the Originating Motion in respect of the first application with no order as to costs. [10]
[10] LRA 62
18During 2023 and 2024, a statutory conference was held and statutory offer and counteroffers were made as required by s333 of the Act. The plaintiff’s proposed common law claim did not resolve.
19The plaintiff issued a writ and a statement of claim on or about 28 March 2024 seeking damages with respect to the plaintiff’s right shoulder injury and left foot injury. Paragraphs 6, 7, 8, 9 and 10 of the plaintiff’s statement of claim provide as follows:
“6. The Plaintiff sustained injuries on or about the said date as a result of falling from a ladder during the course of his employment with the Defendant (“the 7 May 2018 Incident”).
PARTICULARS OF THE 7 MAY 2018 INCIDENT
(a) …..
7. The Plaintiff sustained injuries as a result of the 7 May 2018 incident.
PARTICULARS OF INJURIES (7 MAY 2018 INCIDENT)
(a) Injury to the right shoulder;
(b) Aggravation of injuries to the right shoulder
(c) Injury to the right arm
(d) Surgical scarring
(e) Chronic pain and/or complex regional pain disorder;
(f) Aggravation of alcohol abuse disorder;
(g) Anxiety & depression
8. The Plaintiff sustained injuries on or about the second date as a result of falling from a ladder during the course of his employment with the Defendant (“the 18 May 2018 Incident”).
PARTICULARS OF THE 18 MAY 2018 INCIDENT
a. Upon his return to work following the 7 May 2018 incident, the Plaintiff was located upon a ladder undertaking plastering work.
b. The Plaintiff was unable to hold on to the ladder as a result of his injured right shoulder and fell from the ladder suffering injury to his left foot.
PARTICULARS OF INJURIES 18 MAY 2018 INCIDENT
I. Injury to the left fifth metatarsal
II. Injury to the left foot
III. Injury to the left ankle
IV. Injury to the left leg
V. Injury to the lower left extremity
VI. Impaired gait
VII. Scarring
VIII. Medication dependency
IX. Chronic pain and/or complex regional pain disorder;
X. Aggravation of alcohol abuse disorder;
9. The injuries sustained by the Plaintiff as a result of the 7 May 2018 incident along with the 18 May 2018 incident result from and/or were caused by the act of default, omissions and/or negligence of the Defendant, its servants and/or agents.
PARTICULARS OF NEGLIGENCE
(a) …
10. Further, and in the alternative, the Plaintiff’s injury was caused by reasons of the breach of the Defendant of its duties imposed by the Occupational Health and Safety Regulations 2017 (Vic).
PARTICULARS OF BREACH
Without limiting the generality of the foregoing allegations, the Plaintiff relies upon breaches by the Defendant of the OHS Regulations and in particular:
(a) Regulation 43 requiring hazard identification.
(b) Regulation 44 requiring the control of risks of working from heights.
(c) Regulation 46 regarding the use of administrative control.
(d) Regulation 47 regarding the use of plant to control risk.
(e) Regulation 48 regarding the review of risk control measures.”
20On 3 May 2024, the defendant filed a defence and paragraph 13 provided as follows:[11]
“13. The Plaintiff is not entitled to commence proceeding against the Defendant for the recovery of damages in respect of an injury arising out of or in the course of employment on 18 May 2018 as:
(a) the Plaintiff has not complied with the procedure contained in Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 ("WIRC Act");
(b) the Plaintiff has not received advice from the Victorian WorkCover Authority ("the Authority") that:
(i) the Plaintiff is deemed to have a serious injury arising out of or in the course of employment on 18 May 2018; or
(ii) the Plaintiff is not deemed to have a serious injury arising out of or in the course of employment on 18 May 2018, but the Authority is nevertheless satisfied that the Plaintiff has a serious injury arising out of or in the course of employment on 18 May 2018;
(c) the Plaintiff has not obtained leave from the Court in accordance with section 335(2)(d)(i) of the WIRC Act to bring proceedings in relation to an injury arising out of or in the course of employment on 18 May 2018;”
[11]Affidavit of Nick Korkliniewski affirmed 11 November 2024 16
21On 24 May 2024 the defendant’s solicitors wrote to the plaintiff’s solicitor advising that they considered that the following amendments should be made to the statement of claim:
(i)Paragraph 8 of the Statement of Claim be struck out;
(ii)Paragraph 9 of the Statement of Claim be amended to refer only to the circumstances in which the plaintiff alleges to have sustained on his right shoulder injury on 7 May 2018;
(iii)The Particulars of Injury be amended; and
(iv)The Particulars of Negligence be amended.
22On 30 May 2024 the defendant’s solicitors wrote to the plaintiff’s solicitors taking issue with paragraph 10 of the Statement of Claim which alleged breaches of the OHS Regulations as the alleged fall did not come within the OHS Regulations.
23On 31 October 2024 the plaintiff proposed to amend his statement of claim as follows:
“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 48 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 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.
7. The Plaintiff sustained injuries as a result of the 7 May 2018 incident.
PARTICULARS OF INJURIES (7 MAY 2018 INCIDENT)
(a) Injury to the right shoulder
(b) Aggravation of injuries to the right shoulder
(c) Injury to the right arm
(d) Surgical scarring
(e) Chronic pain and/or complex regional pain disorder
(f) Aggravation of alcohol abuse disorder
(g) Anxiety & depression
8. Following his return to work and as a consequence of the shoulder injury claimed to have occurred at the time of the 7 May 2018 incident, the Plaintiff sustained injuries on or about the second date as a result of falling from a ladder during the course of his employment with the Defendant (“the 18 May 2018 incident”).
PARTICULARS OF THE 18 MAY 2018 INCIDENT
a. Upon his return to work following the 7 May 2018 incident, the Plaintiff was located upon a ladder undertaking plastering work.
b. The Plaintiff was unable to hold on to the ladder as a result of his injured right shoulder and fell from the ladder suffering injury to his left foot.
c. The Plaintiff claims that the subsequent fall and injuries sustained to his left foot and ankle are consequential to the 7 May 2018 incident and arise out of the course of his employment with the Defendant.
d. Further, the Plaintiff claims that the injuries received from the 7 May 2018, specifically and causally resulted in the happening of the 18 May 2018 incident due to an inability to hold onto the said ladder as a result of his injured right shoulder.
PARTICULARS OF INJURIES 18 MAY 2018 INCIDENT
i. Injury to the left fifth metatarsal
ii. Injury to the left foot
iii. Injury to the left ankle
iv. Injury to the left leg
v. Injury to the lower left extremity
vi. Impaired gait
vii. Scarring
viii. Medication dependency
ix. Chronic pain and/or complex regional pain disorder
x. Aggravation of alcohol abuse disorder
9. The injuries sustained by the Plaintiff as a result of the 7 May 2018 incident along with the 18 May 2018 incident result from and/or 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 employment between 7 May 2018 up to and including 18 May 2018.
PARTICULARS OF NEGLIGENCE
(a) Causing and/or failing to prevent the stack of plaster boards being located in the vicinity of the work platform.
(b) Failing to remove an obvious tripping hazard.
(c) Causing and/or allowing long lengths of plasterboard to be placed on the top of the stack of plaster boards causing the Plaintiff to believe that he was able to safely step on the said stack of plaster boards.
(d) Failing to provide the Plaintiff with a workplace that was, so far as reasonably practicable, without risk to health.
(e) Failing to provide a safe system of work.
(f) Failing to provide the Plaintiff with any or any adequate or proper supervision.
(g) Exposing the Plaintiff to a risk of danger or injury of which the Defendant knew, or ought to have known.
(h) Exposing the Plaintiff to a risk of injury which could have been avoided with reasonable care on the part of the Defendant and/or its agents.
(i) Permitting and/or requiring the Plaintiff to work and/or continue to work in a dangerous manner.
(j) Failing to provide the Plaintiff with a safe system of work that prevented him from sustaining injury in the course of performing the duties which he was allocated to perform.
(k) Requiring the Plaintiff to undertake duties which were in the circumstances beyond his strength and/or capabilities.
(l) Failing to properly supply the Plaintiff with any or adequate equipment required to be used in the course of his employment.
(m) Failing to provide any or any adequate instructions or training to the Plaintiff in regards to working from heights.
(n) Failing to provide the Plaintiff with any or any adequate plan to control the risk of working from heights.
(o) Failing to provide the Plaintiff with scaffolding and/or an elevated work platform.
(p) Failing to provide any or any adequate review of risk control measures for working from heights.
(q) To assess adequately or at all the plaintiff’s system of work.
(r) Failing to undertake any or adequate assessment of the plaintiff’s work.
(s) In the alternative, failing to comply with and/or implement any recommendations made by any such risk assessments.
(t) Requiring the Plaintiff to work at a pace that was not reasonable and/or safe in the circumstances.
(u) Failing to comply with its obligations imposed by the OHS Act and the regulations made thereunder.
(v) Failing to provide the Plaintiff with suitable duties in circumstances in which the Defendant knew, or ought to have known, that the Plaintiff had sustained injuries to his right shoulder as a result of the fall on 7 May 2018;
w) Allowing the Plaintiff to undertake tasks, at height, when the Defendant knew or ought to have known, constituted an obvious risk of injury to the Plaintiff.
10. Further, and in the alternative, the Plaintiff’s injury was caused by reasons of the breach of the Defendant of its duties imposed by the Occupational Health and Safety Regulations 2017 (Vic)
PARTICULARS OF BREACH
Without limiting the generality of the foregoing allegations, the Plaintiff relies upon breaches by the Defendant of the OHS Regulations and in particular:
(a) Regulation 43 requiring hazard identification.
(b) Regulation 44 requiring the control of risks of working from heights (with regard to the fall from the ladder on 18 May 2018 only).
(c) Regulation 46 regarding the use of administrative control.
(d) Regulation 47 regarding the use of plant to control risk.
(e) Regulation 48 regarding the review of risk control measures.”
24On 31 October 2024, the defendant wrote to the plaintiff’s solicitor, maintaining its objection that the proposed pleadings were an attempt to expand the cause of action beyond that relating to the circumstances relevant to the right shoulder injury for which the serious injury certificate was granted. The defendant acknowledged the plaintiff would seek damages for any consequential injuries, but he was not permitted to rely on an expanded cause of action. Accordingly, it maintained paragraph 9 of the proposed statement ought be amended to limit an allegation of negligence for injury sustained on 7 May 2018 only, and the cause of action should not encompass the circumstances of the alleged consequential ankle injury on 18 May 2018. It also maintained its objection to paragraph 10 on the basis that the Occupational Health and Safety (Prevention of Falls) Regulations 2003 (‘Prevention of Falls Regulations’) did not apply to the circumstances of injury alleged on 7 May 2018.
The plaintiff’s submissions
25The plaintiff submitted that as he maintained a cause of action in negligence by the employer along with a breach of the statutory regulations/duty, there was no necessity for the plaintiff to seek leave, separately for the ankle injury, particularly where the plaintiff alleged a connection between the first (shoulder) and the second (ankle) injuries in the course of his employment with the defendant.
26As the plaintiff was granted leave for the shoulder injury, which was first in time, the plaintiff submitted that he was able to prosecute a claim in negligence/breach of statutory duty against the employer for all claimed injuries connected to his employment within the employment period specified.
27The plaintiff in his written submissions referred the Court to Karatzidis v Victorian Railways Commissioners,[12] in which the Full Court held, in a case where the particulars of demand alleged alternative courses of action, “they were, however, all allegations of negligence, with the particulars of negligence being stated as if they were new and different causes of action.… In reality, in cases of this kind there is only one cause of action, namely a cause of action for negligence, it being alleged that there has been a failure to take reasonable care for the safety of the employee.”[13]
[12] Karatzidis v Victorian Railways Commissioners [1971] VR 360 (‘Karatzidis’)
[13] Ibid at 365-366
28The plaintiff also submitted that the dicta in Karatzidis was cited with approval by the Court of Appeal in Bell Radiology (A Firm) v McGraw which involved two incidents resulting in injury to the plaintiff’s spine over the course of her employment with the defendant (Respondent on Appeal). The direction to the jury by the trial judge was to the effect:[14]
“Your task is a lot easier if you find that there was negligence in relation to both, because then you would just look at the total picture and it doesn’t matter about dividing them between incidents at all, that has nothing to do with it, but you will have to do that if you are satisfied that there was negligence in relation to one of the incidents, but not the other.”
[14]Bell Radiology (A Firm) v McGraw (Unreported, VSC, 31 July 1995, 1 August 1995, 7 February 1995, Tadgell, Ormiston and Callaway JJA) at 14 (‘Bell Radiology’)
29Tadgell JA held that:
“[T]o instruct the jury that they could not find for the plaintiff unless they found negligence “in relation to” the March or the September incident was in my opinion likely at least to be misleading insofar as it invited a consideration of each incident in isolation.”[15]
[15]Bell Radiology at 14
30The plaintiff argued that the left ankle injury was consequential to the right shoulder injury and therefore both injuries are compensable as they result from a single cause of action namely negligence on the part of the defendant.
31I was also referred to the decision in Georgopoulos v Silaforts Painting Pty Ltd,[16] which considered the construction of the serious injury gateway in the context of the Accident Compensation Act 1985 (Vic) and Kruisselbrink v Nationwide Maintenance Services Pty Ltd[17] where J Forrest J considered the parameters of the certificate granted by the VWA.
[16] Georgopoulos v Silaforts Painting Ptd Ltd [2012] VSCA 179 (‘Georgopoulos’)
[17] Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260 (‘Kruisselbrink’)
32The plaintiff submitted that if the certificate granted in this instance by the VWA was to be construed only by reference to the wording of the certificate, it would be “narrowed with specificity to include only the injury referred to in the circumstances described in paragraph 6 of the proposed statement of claim.”[18] The plaintiff argued that the wording in the certificate in this instance was irrelevant to the cause of action to be pleaded at trial and only served as confirmation that the gateway had been accessed. The granting of the certificate was not by the leave of the court after hearing and considering evidence.
[18] Submissions on Behalf of the Plaintiff at [24]
33In oral submissions, the plaintiff maintained that the plaintiff’s initial right shoulder injury should be treated on a continuum with the left ankle injury rather than separate causes of action. Mr Valiotis did however acknowledge that paragraph 9 of the proposed amended statement of claim required refinement to ensure the particulars accurately reflected a single cause of action rather than separate incidents.[19]
[19] T43, L110-13
34The written submissions did not address the defendant’s position in respect of paragraph 10, the pleading concerning the alleged breaches of the Prevention of Falls Regulations. Mr Valiotis conceded in oral submissions this pleading will need to be examined.[20]
[20] T43, L25
The defendant’s submissions
35The defendant submitted that as the plaintiff’s proposed amended statement of claim sought to address the defendant’s objections, paragraph 8 was no longer objectionable but paragraphs 9 (in part) and 10 were not maintainable.
36Paragraph 9 required an amendment so as to limit the allegation of consequential injury on the basis the plaintiff had not accessed the serious injury gateway in respect of the discrete left foot injury alleged to have occurred on 18 May 2018.
37The defendant accepted that the serious injury certificate granted in respect of the compensable circumstances on 7 May 2018 permitted the plaintiff to allege a breach of duty causing the fall from the trestle platform causing right shoulder injury, and the right shoulder injury in turn caused injury to the left foot. However, as the plaintiff failed to obtain a grant of leave for the left foot injury, it was impermissible to allege independent breaches of duty on 18 May 2018 which caused the fall from the ladder and thus directly caused the left foot injury.
38To the extent that the plaintiff sought to plead independent breaches of duty occurring after 7 May 2018 and breaches of the OHS Regulations after 7 May 2018, which the proposed amended statement of claim sought to do, it was not permissible because no leave was granted in respect of injury suffered in the second incident on 18 May 2018.
39The focus ought to be on injury rather than the cause of action because the legislative scheme sets out the right to bring a claim for damages in respect of an injury. The plaintiff was seeking to rely on completely different circumstances maintaining that the plaintiff sustained injuries as a result of two incidents.
40It was permissible for the plaintiff to plead that the cause of the fall in the second incident was because of the negligently inflicted injury to the right shoulder and then to include as part of the damages, the consequences to his left foot. Paragraph 9 of the proposed amended statement of claim however is alleging negligence on the part of the defendant in relation to the 18 May 2018 incident independently to the 7 May 2018 incident. This was not permissible at law unless that second injury suffered in different compensable circumstances was the subject of a serious injury certificate or a grant of leave made by this Court.
41The plaintiff did not sustain a gradual process injury nor multiple insults to the same body part so it could not be said that a certificate or grant for an injury on 7 May 2018 could extend to cover such circumstances. The general language used in the particulars of negligence appended to paragraph 9 did not somehow convert discrete and very different incidents to the same compensable circumstances. Therefore, the plaintiff is not permitted to plead particulars of negligence that pertain solely to the 18 May 2018 incident.
42The defendant referred the Court to Brambles v Wail[21] where the Court of Appeal said the focus of a leave application is whether in the opinion of the judge asked to grant leave, the injury is serious within the meaning of the Act. Forrest J in Kruisselbrink referred to Brambles with approval and stated that:[22]
“…it is the injury which is the focus of the grant of leave. Provided the events alleged to be productive of the serious injury can be related to the employment (ie compensable injury) and it occurred as a result of work after 20 October 1999 then the claim is, at least at the interlocutory stage, tenable unless the employer establishes there is no basis for linking the serious injury to the work activities.”
[21] Brambles v Wail [2002] VSCA 150 (‘Brambles’)
[22]Kruisselbrink [56]
43In Harvey v Methodist Ladies College, Beach J permitted a plaintiff who was granted leave to bring proceedings for damages in respect of injury occurring on or about 25 October 2001, to rely on a cause of action preceding 25 October 2001 but struck out a paragraph alleging a further aggravation injury after 25 October 2001. His Honour stated:[23]
“…there is nothing impermissible, in appropriate circumstances, in a plaintiff alleging that different aspects of her employment with the defendant were alternative or cumulative causes of an injury in respect of which such a plaintiff has been given leave to bring proceedings….
…
…Insofar as the plaintiff seeks to plead and prove a cause of action leading to a further and different injury after October 2001, such a claim is precluded by the operation of Judge Strong’s order. However, insofar as the plaintiff contends that any further injury was the natural and probable consequence of the injury in respect of which leave has been granted, then the same is permissible - adopting what was said by the High Court in Mahony v J Krustchich (Demolitions) Pty Ltd [1985] HCA 37; (1995) 156 CLR 522. Paragraph 5 in its current form is embarrassing. It can either be struck out or leave can be sought to amend it consistently with these reasons, that is, by limiting its operation in respect of any injury after October 2001, to the same being the natural or probable consequence of the injury referred to in paragraphs 3 and 4 of the plaintiff’s amended statement of claim.”
[23]Harvey v Methodist Ladies College [2008] VSC 425 at [11], [14] (‘Harvey’)
44The defendant submitted that the factual circumstances in Harvey are analogous to this case.
45In Warwick Gilford v Freshmore (Vic) Pty Ltd, Hargrave J observed that the serious injury certificate defines the injury for which consent is given by reference to the injury alleged to have occurred in the circumstances referred to in the draft statement of claim.[24] From the description of the injury, it was clear that consent was not given for common law proceedings in respect of any further injury suffered by the plaintiff at his workplace, including any aggravation of the initial injuries. This did not preclude the plaintiff however from alleging he had suffered further injury as the natural and probable consequence of the initial injuries, as that would be permitted.
[24]Warwick Gilford v Freshmore (Vic) Pty Ltd [2012] VSC 191
46With respect to paragraph 10, insofar as it related to the first fall from the trestle platform, the defendant submitted that it must also be struck out because the first fall was not from a height more than 2 metres (particular (b) of paragraph 6 of the proposed amended statement of claim refers to a height of 90 cm). Regulation 41 of Part 3.3 of the OHS Regulations only applies to the prevention of falls from more than 2 metres (having regard to the definition of fall in Regulation 5). The defendant argued that leave not be granted to replead paragraph 10.
Discussion
47I propose to grant the defendant’s application.
48The authorities to which I was referred, support the conclusion that the plaintiff is not limited to the cause of action identified in the draft statement of claim relied on in the serious injury application. However, Harvey and Kruisselbrink make it clear that the plaintiff can only rely on those circumstances of his employment which are related to the serious injury grant in respect of injuries sustained on 7 May 2018. I agree with the defendant’s submission that Harvey is analogous to the case at hand.
49The plaintiff must access the serious injury gateway by complying with the processes set out in Div 2 of Part 7 of the Act. He can only recover damages in respect of an injury if the injury is a “serious injury” as defined in section 325 of the Act. As Georgopoulos makes clear, reference to injury in respect of which a serious injury has been granted or certified, is a reference to the total injury suffered in the relevant compensable circumstances.
50The plaintiff made two separate and distinct serious injury applications in relation to the two specific incidents. The affidavit of the plaintiff in support of the second application dealing with right shoulder injury, set out clearly that the plaintiff was also seeking a certificate in respect of injuries sustained in a discrete incident on the 18 May 2018 in a separate application. The injuries which occurred in distinct circumstances on 7 May 2018 and 18 May 2018 were not treated as part of a continuum of injury for the purposes of the serious injury applications. A review of the material exhibited to the affidavit of Ms Rizkalla clearly points to what was certified to be a “serious injury” in respect of the 7 May 2018 incident and accordingly, the limits of such serious injury certificate.
51The plaintiff’s particulars of negligence appended to paragraph 9 of the proposed statement of claim, in so far as they include particulars relevant to injury occurring on 18 May 2018, are not permissible because they go beyond the totality of injury that was alleged to have been caused by the compensable circumstances that gave rise to the serious injury on 7 May 2018.
52To the extent that the plaintiff seeks to plead an independent breach of duty or a breach of the OHS Regulations in respect of injury occurring on 18 May 2018, he is not permitted to do so because there was no leave granted in respect of injuries suffered on 18 May 2018. The plaintiff can only rely on the injury occurring on 18 May 2018 as a natural or probable consequence of the injury which occurred on 7 May 2018.
53The plaintiff in his pleadings has gone beyond what the grant of serious injury permits. As the Kruisselbrink line of authority established, it is the ‘injury’ which is the focus of a grant of leave.
54Accordingly, in my view, the plaintiff is limited to pleading causes of action in negligence and or breach of some statutory duty in relation to the injury which occurred on 7 May 2018. In particular, the plaintiff is not entitled to allege that a separate and independent breach occurred on 18 May 2018 which was a cause of his ankle injury. Paragraphs 9(v) and 10(b) of the proposed amended statement of claim can only relate to an allegation of a breach of duty or OHS Regulations in respect of a distinct incident occurring on 18 May 2018 and cannot be maintained. The balance of the particulars need to be reviewed to ensure that they are confined to the serious injury for which leave was granted.
55The decisions Karatzidis and Bell Radiology to which I was referred to by the plaintiff do not assist in working out the ambit of the grant of leave for the injury. They are not cases about the operation of the serious injury gateway and are therefore distinguishable.
56I propose to ‘strike out’ paragraphs 9 and 10 and I will grant the plaintiff leave to file an amended statement of claim repleading only paragraph 9. The plaintiff did not make any specific submissions in relation to the defendant’s argument that the pleading in respect of Regulation 41 of Part 3.3 of the OHS Regulations cannot be maintained. As the plaintiff pleads the height of the trestle platform from which the plaintiff fell was 90cm, he cannot invoke Part 3.3 which applies to the Prevention of Falls Regulations, as a fall under that Part means a fall of more than 2 metres.
57I invite the parties to submit orders in accordance with this ruling.
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