Thompson v Sanhan Pty Ltd
[2015] VCC 1027
•6 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
Case No. CI-13-05844
| DAVID MICHAEL THOMPSON | Plaintiff |
| v | |
| SANHAN PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2015 | |
DATE OF RULING: | 6 August 2015 | |
CASE MAY BE CITED AS: | Thompson v Sanhan Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1027 | |
REASONS FOR RULING
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Catchwords: Accident Compensation Act 1985 – s134AB – Application for serious injury certificate based upon injury occurring on a specific day – Application granted and serious injury certificate issued – Statement of Claim issued with reliance upon the specific date – subsequent Application to amend Statement of Claim so as to include course of employment and in particular injury upon specific date – whether Application to amend should be granted – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Maurice Blackburn |
| For the Defendant | Ms M Britbart | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of a contested directions hearing. It concerns the operation of s134AB of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to file and serve a Further Amended Statement of Claim. The plaintiff obtained a serious injury certificate in relation to a back injury allegedly sustained in the course of his employment and in circumstances of alleged negligence on a particular date. In essence, he now seeks to expand his cause of action so as to include the course of his employment with the defendant, whilst still relying on what occurred on that specific date. The details shall be set out shortly, but whether or not he should be permitted to do this lies at the heart of the dispute.
2 Mr G Wicks of counsel appeared on behalf of the plaintiff. Ms M Britbart of counsel appeared on behalf of the defendant. No oral evidence was called, but reliance was placed upon a number of documents which were tendered. Counsel made particularly helpful submissions in relation to this somewhat vexed question and I was referred to a number of authorities.
3 I should add that, for the purposes of this Application and Ruling, there was little or no dispute concerning the factual basis, which I shall now summarise.
Factual background
4 The following facts are assumed for the purposes of this Ruling.
5 At all relevant times, the plaintiff was employed by the defendant as a fitter at a power station in Yallourn. He sustained injury to the back, it originally being asserted that he suffered this on 2 February 2010. Via his solicitors, on 14 March 2013 he made an Application pursuant to s134AB of the Act. In support of his Application, he relied upon a considerable number of medical reports and an affidavit sworn by him on 2 April 2012. In that affidavit, he described a specific incident of injury which occurred whilst he was unloading heavy blocks on 2 February 2010. He referred to the fact that he had been employed with the defendant since 1998.
6 In his affidavit of 2 April 2012, the plaintiff also referred, in paragraph 10, to having suffered some lower back pain at various times over the years before the 2010 injury, but such had always responded to treatment by way of medication and rest. He mentioned a low back strain which occurred when he was working for a previous employer. However, in the same paragraph the plaintiff swore as follows:
“During the last 10 years I have suffered a few short-term back pain episodes, which responded to rest. Those episodes occurred on average of about 3 times a year. (sic) In 2008, together with my supervisor Christian Smith, (sic – Mr Smith’s name is spelt Kristian) I was engaged in removing an approximate 50 kilogram gear from a crane gearbox situated under the roof of a building. We carried the gear down a stairwell to level 6, which was the highest point a lift travelled to, and during that process I felt a niggle in my lower back which I mentioned to Christian at the time. I did not report the incident formally and it was not of sufficient severity to cause me to seek medical treatment. My work generally was often of a heavy nature and I often had to lift heavy items by myself, as there is not always assistance available.”
7 My attention was drawn by Mr Wicks to excerpts from various medical reports, most of which accompanied the Application, but some of which have been obtained since. Reference was also made to some medical reports obtained by the defendant. Subsequently I shall return to a discussion of the medical material.
8 On 17 July 2013, the solicitors for the defendant wrote to the solicitors for the plaintiff stating, inter alia:
“It has further been determined that your client does have a serious injury within the meaning of sections 134AB(37) and 134AB(38) of the Act with respect to the injuries referred to in the application and the Authority does grant leave pursuant to section 134AB(16) of the Act.
A serious injury certificate is therefore granted for pain and suffering and loss of earning capacity…with respect to the injuries referred to in the application.
We will forward a serious injury certificate shortly.”
9 No serious injury certificate was ever forthcoming, but, for the purposes of the present Application, the letter of 17 July 2013 is to be treated as the effective granting of the certificate – see Transcript (hereinafter referred to as “T”) 3-10. There is no argument but that, up to this point in time, the Application essentially focussed upon injury occurring on 2 February 2010.
10 Little more need be added by way of factual background. Apparently, the plaintiff returned for a short time to his normal work. When he was unable to cope, he was put on light duties. Ultimately, he stopped work altogether. This seems to have been in approximately April 2010. The plaintiff came to back surgery performed by Mr Tiew Han in June 2010, when he underwent a laminectomy and discectomy. In November 2010 there was a brief return to work on alternative duties. However, the plaintiff encountered further difficulties. He was referred back to Mr Han, who performed a discectomy and fusion of the lumbar spine in September 2011. Whilst it is not entirely clear, it would seem that he has not returned to work since late 2010.
11 There is also no argument but that the Statement of Claim was amended in November 2012, but no amendment of significance occurred on this occasion.
12 The relevant paragraphs of the proposed Further Amended Statement of Claim read as follows:
“3. Throughout the course of his employment from 1st December, 1999 to the 16th December, 2010, the plaintiff was required to perform work which was heavy, awkward and repetitive and in particular on 2 February, 2010, the plaintiff was required to lift, manoeuvre and stack large timber blocks, lift and manoeuvre heavy wire and manoeuvre a heavy buffer from a crane (‘the work’).
3A. As a consequence of the work, the Plaintiff suffered injury, loss and damage (‘the injury’).”
Some additional proposed amendments, principally relating to breaches of the Occupational Health & Safety Regulations 2007, are also included, but, as I understand the situation, I am not asked to rule in relation to them. The contest proceeded entirely in relation to the proposed paragraphs 3 and 3A set out above.
13 The above represent the essential facts which form the basis of the dispute. The submissions of counsel, to which I shall now turn, include a mix of factual and legal allegations. I shall summarise them in the order in which they were given.
The submissions on behalf of the plaintiff
14 The submissions of Mr Wicks, on behalf of the plaintiff, could be summarised as follows.
15 In Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260, J Forrest J made findings which are applicable to the present situation. At paragraph 41, he stated as follows:
“In other words, in a serious injury application the attention of the Court is upon the specific injury and it is that which is the subject of the grant of leave or certification. It must be a compensable injury and it must also be linked to employment on or after 20 October 1999.”
16 His Honour had earlier been referring to the well-known case of Barwon Spinners v Podolak (2005) 14 VR 622. His Honour’s observations support the proposition that the date of injury is not something that can be so constricted in any serious injury application. What has to be determined is whether the injury is a compensable injury and whether it is a serious injury. The cause of action is a factual determination to be pursued at a later stage.
17 What is required to be done is that the Victorian WorkCover Authority, (hereinafter referred to as “the Authority”) in this case via its solicitors, makes a determination as to whether the injury is a serious injury. It must first determine whether the injury is compensable and then consider whether such injury is serious within the meaning of the Act.
18 Returning to Kruisselbrink, at paragraph 45 his Honour stated as follows:
“The provisions of s 134AB, (1), (2), (3) and (16) require the Authority, where considering a certificate, to determine whether the compensable injury is serious as Barwon Spinners and Nicolaou explain. The focus of the Authority is not upon the cause of action which the worker may have, but rather on the nature and effects of the compensable injury.”
19 The determination to be made is whether an injury is a serious injury and not as to what disputable material might be contained in the later cause of action.
20 J Forrest J went on to say:
“Apart from these two considerations (namely whether the injury which arose is compensable and whether it is related to employment on or after 20 October 1999), then of course the Authority considers the impairment caused by the injury and whether it can be regarded as ‘serious’. Otherwise the circumstances of employment, so far as they are relevant to the damages trial, form no part of the consideration of the Authority in determining at that stage the question of serious injury…
In short, it is no function of the Authority to determine what employment circumstances can or cannot be litigated in the damages trial.”
21 In the present case, the defendant is seeking to limit the cause of action in the damages trial because of what is contained in the certificate. This is none of its business. Its business is to determine whether the injury is a serious injury.
22 Reference is also made to the decision of Beach J in Harvey v Methodist Ladies College [2008] VSC 425. Reference is further made to the decision in Brambles v Wail [2002] VSCA 150. The issue of employment circumstances is irrelevant. No restriction exists in relation to the date of injury. What the Authority is asked to consider is whether or not the injury is a serious injury within the meaning of the Act. At the time that a determination is made in respect to serious injury, attention should not be focussed on the circumstances which surround it. Reference is again made to Kruisselbrink, where, at paragraph 59, J Forrest J stated as follows:
“The issue as to whether a particular aspect of the worker’s employment is related to the certified serious injury (and therefore properly the subject of the proceeding) is, in essence, a factual dispute that will turn upon the evidence of both lay and medical witnesses at trial. It would be uncommon, I suggest, for this issue to be resolved solely upon medical reports and untested affidavit material.” -
23 In short, the business of the Authority is to determine whether the injury is a serious injury. Further, the present situation can be distinguished from one where the Court has previously determined that an event has happened in a particular way and on a particular day. The Authority is not asked to sit as a judge.
24 The focus of the Authority has to be on whether the injury is a serious injury and it is not to determine the factual basis of the circumstances.
25 Further, in Kruisselbrink, J Forrest J also stated, at paragraph 63(4), that, when clarifying the injury in respect of certification, it is appropriate for the Court to have regard to the material available to the decision maker at the time of the determination. This is consistent with the decisions in Brambles and Harvey. In other words, it is appropriate to draw to the attention of the Court the available material as to the course of employment that was before the decision maker at the time of its decision.
26 It is common for a certificate issued by the Authority to be date-specific and it is not uncommon for an amendment to be made to the draft Statement of Claim before the proceeding is issued.
27 If the material referring to events or circumstances beyond or outside the specific date is put forward, it is not the task of those granting the certificate to confine it to a specific day.
28 This again highlights that the focus of the Authority should be on whether the injury is a serious injury, rather than determining the factual material as to circumstances. Further, J Forrest J set out the approach to be adopted in paragraph 63 of Kruisselbrink. In essence, the granting of a certificate will establish the existence of a compensable, serious injury. This permits the Court to entertain the common law claim for damages. Reference is also made to what was said by Beach J in Harvey at paragraph 11 as follows:
“As the authorities to which I have already referred show, 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.”
29 Applying that to the present facts, there is nothing impermissible in saying that the plaintiff injured his back as a result of a series of assaults, including that of 2 February 2010, all of which contributed to the serious injury.
30 Returning to Kruisselbrink, at paragraph 62 J Forrest J said as follows:
“In many cases the Authority grants a certificate specifying an injury occurring on a particular day. That is a convenient way of identifying the injury which is considered to be a serious injury. However it cannot, in doing so, confine at this stage the worker to a specific work activity which is productive of the injury. That is not its task.”
31 Further, reference is made to paragraph 59 of Kruisselbrink, where his Honour stated as follows:
“The principles in relation to the striking out of a pleading or the entry of summary judgment for a defendant are well known. Only if it is shown that the allegation cannot be maintained at trial can the relevant part of the pleading (or all of it) be struck out. It must be ‘very clear indeed’ to use the words of Dixon J in Dey v Victorian Railways Commissioners. The same applies to a putative amendment – unless it is shown that the amendment is futile in the sense that it could not possibly succeed at trial, then it should, assuming there are no other relevant circumstances, be allowed.”
32 In the present case, there is therefore an onus on the defendant to show that the proposed amendment to the Statement of Claim would be futile.
33 Turning to the material, reference is made to the affidavit of the plaintiff (portions of which I have set out above). The incident of injury on 2 February 2010 is described. A system of work is also set out. Reference is also made to the history of back symptoms (to which reference has been made above). The clear inference to be drawn is that the plaintiff, due to the nature of the work in which he was involved, suffered back symptoms a few times a year as a result of that work.
34 Mr Wicks then directed my attention to various medical reports which contain remarks which he claims support the proposition that there is an arguable case that work done for the defendant over the years prior to 2 February 2010 has contributed to the plaintiff’s injury. This proposition has particular relevance to arguments concerning the possible futility of allowing the amendments. Ms Britbart argued that any such observations by a medical examiner are only included in the material by way of background and that there is no medical opinion in fact linking the plaintiff’s injury to the course of employment over and above what occurred on 2 February 2010. I shall now set out in brief the portions of the medical reports to which I was referred by Mr Wicks.
(i) A treating orthopaedic surgeon, Mr Andries de Villiers, reported on 22 April 2010 to the plaintiff’s general practitioner that the plaintiff had a clear history of injuring his back at work. Mr de Villiers stated, “He normally lifts heavy stuff and he has been doing this for quite some time, but, a few months ago, he lifting (sic) up something and he developed an acute pain in his right leg”.
(ii) Whilst his report was not in the hands of the Authority at the time of it making the relevant decision, the medico-legal report of Mr Thomas Kossmann, orthopaedic surgeon, of 5 September 2012 contains the following:
“He told me that his work included lifting of heavy items, twisting and bending of his upper body and working in an awkward position. Often he had to work in cramped and confined spaces. Mr Thompson developed pain in his lumbar spine over the years and had several flare ups, which resolved by itself or by self-treatment.”
Mr Kossmann made the following observation under the heading “Analysis and Discussion”:
“Mr Thompson was involved in heavy physical work…Over the years Mr Thompson had increasing back pain.”
Mr Kossmann then referred to the specific task which the plaintiff was performing when he developed severe back pain, this being the incident in February 2010.
(iii) Mr Z J Poplawski, consultant orthopaedic surgeon, examined the plaintiff at the request of the defendant on 7 December 2012. His report was included in the response material which followed receipt of the Application. Mr Poplawski commented as follows:
“His work duties are physically demanding involving considerable bending, lifting and carrying activities, walking up and down ladders and scaffolding and for long hours.”
Mr Poplawski also recorded the following:
“As he had had previous episodes of back pain associated with lifting activities which settled within a week or two, he felt that this (the incident of 2 February 2010) was another such episode and was not concerned about it initially. However as symptoms increased in intensity and persisted, after two or three weeks he was changed over from his regular work to light duties.” (My italics)
(iv) Mr Peter Battlay, general surgeon, reported to the defendant on 8 February 2013. He reported that the plaintiff was employed as a fitter, performing maintenance and repairs on cranes and other machinery, which was heavy work. He also recorded as follows:
“He denies any previous back problems, although he used to get occasional back pain that would resolve in a few days without treatment.”
(v) Amongst the response material was a report from a rehabilitation provider, WorkAble Consulting Pty Ltd. It is recorded in that report that the plaintiff worked both from a workshop and on-site. It is stated in the report that the plaintiff had advised that his pre-injury duties involved a substantial amount of physical labour and that he spends approximately 50 per cent of his working day bent over gearboxes and the like. He is often required to lean over equipment and structures that require repairing. The return to work co-ordinator seems to have been Mr Kristian Smith, who was also working with the plaintiff when he suffered the injury on 2 February 2010. Mr Smith reported that the plaintiff’s workload was unpredictable and depends upon the type of work available. The plaintiff further advised that the type of duties which he performs on a daily basis require him to constantly twist and rotate his back so that he can manoeuvre in tight spaces. He is also required to crawl through awkward spaces, climb up and down stairs whilst carrying objects such as his tool bag, which weighs approximately 20 kilograms, and the like. The plaintiff also advised that, when working on-site at the power station, he is required to lift heavy items manually. These can weigh up to 50 kilograms. Mr Smith advised that the majority of work available at the power station involves a substantial amount of physical labour, including heavy lifting and climbing up and down stairs. He also stated that duties in the workshop would still require the plaintiff to lift heavy objects.
(vi) There has been interrogation in this matter. The director of the defendant swore the answers to the plaintiff’s interrogatories. He swore that, when the plaintiff suffered the injury in question, he was performing his normal duties, as well as rigging duties. That work involved the construction, maintenance and repair of lifting equipment and general rigging of lifting devices.
35 Mr Wicks concluded by saying that there was a very good description of the heavy activities which the plaintiff was performing on 2 February 2010 and it is clear that the defendant concedes in its Answers to Interrogatories that these were the plaintiff’s normal duties. The case should be determined on its facts, and not on the basis of some artificial attempt to restrict the plaintiff to one event. It is clear that he engaged in very heavy work over a period of time and with assaults to his spine. It is very difficult for the defendant to assert that this is a futile amendment, which assertion is, on the basis of the decision in Kruisselbrink, its responsibility.
Submissions on behalf of the defendant
36 The submissions of Ms Britbart on behalf of the defendant could be summarised as follows.
37 Until now, the basis upon which the plaintiff had put his Application and his claim for damages has been only in relation to what occurred on 2 February 2010. That is the way that the case has been put in his supporting affidavit, in his pleadings, in interrogatories and in medical reports. The proposed Further Amended Statement of Claim is the first time that a course of employment argument has appeared in the material.
38 Reference is made to the decision of Osborn J in Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340. In that case, the plaintiff was claiming damages arising from the course of his employment from December 1992 to November 1997. Thus, the leave granted was in very wide terms. However, the defendant argued that, notwithstanding the width of such terms, in reality it was occurrences in 1995 that were said to have caused the injury and it was only for that time that the plaintiff could sue at common law.
39 His Honour considered that he was entitled to look behind the granting of leave and look at how the plaintiff was really putting his case and what was really in issue. The plaintiff’s affidavit in support of his Application specifically referred only to incidents in 1995. When the Application came on before his Honour Judge Duggan, it was opened on the basis that the key occurrences were in 1995. Attention was directed to the medical evidence for the period 1995-96. At paragraph 39, Osborn J stated as follows:
“In my view both the terms of the application form and the terms in which the application was made to the Court, made clear that the plaintiff’s case was that he was injured during 1995 as the result of ongoing stress to the plaintiff’s back culminating in the incident of 21 September 1995.”
40 Osborn J concluded that, when his Honour Judge Duggan’s reasons are read carefully and in the context of the Application before him, it was apparent that the injury for which leave to proceed was granted was injury to the lower back suffered during ongoing employment in 1995. The plaintiff’s Statement of Claim was amended accordingly.
41 In the present case, examination of all the documents shows that there was unanimity between the plaintiff and the defendant as to how the plaintiff was putting the case. There was no disagreement or confusion. The parties have proceeded on the basis that the plaintiff was injured on a single day.
42 The material in the plaintiff’s affidavit concerning the general heavy nature of his work is, like his description of his working history, background. It is not said to be related in any way to the injury the subject of the proceedings. No doctor provided any opinion about the relationship between general heavy work and the injury and this is fatal. There is no clear history from the plaintiff about what the heavy work caused by way of symptoms. The affidavit is clearly aimed at what occurred on 2 February 2010.
43 The draft Statement of Claim which accompanied the Application for serious injury clearly confines such injury to what occurred on 2 February 2010. This is consistent with what is contained in the medical reports of the treating general practitioner, Dr Gaweed; of the treating neurosurgeon, Mr Han; and of the treating orthopaedic surgeon, Mr de Villiers.
44 The Authority can only arrive at a decision on the basis of the application that has been made. The present application was clearly made on the basis of symptoms suffered on 2 February 2010. In determining whether an injury was sustained in compensable circumstances, the Authority must look at such circumstances. The Court is then entitled to look at what was said and put by the parties. In the present case, everyone understood this to be an application based upon a happening on a particular date.
45 Reference is also made to the claim form signed by the plaintiff. The injury is reported as having occurred on 2 February 2010. The circumstances are described. The plaintiff made a claim for impairment benefits. The form which he signed in this regard also referred to the injury as having occurred on 2 February 2010, when he was unloading timber blocks. The defendant’s register of injuries also refers to that date.
46 The reference to general heavy work contained in the report of Mr Poplawski is by way of background. Despite being aware of this background, Mr Poplawski expressed the view that the plaintiff sustained injury on 2 February 2010. The same could be said of the report of Mr Battlay.
47 Other medical reports obtained by the defendant also focus upon an incident of injury on 2 February 2010. These are reports that formed part of the response material.
48 Dr Stephen Stern, consultant psychiatrist, reported to the defendant on 4 February 2013. The history obtained by him was of specific injury on 2 February 2010. He also reported on other medical and psychiatric history. Various medical conditions are described, but there is no reference to any back pain or problems prior to the relevant incident.
49 Mr Max Wearne, consultant orthopaedic surgeon, reported on 14 January 2013. Mr Wearne specifically questioned the plaintiff about his state of health prior to the incident in 2010. The plaintiff said that he regarded himself as being in good health, being strong, fit and with no history of serious injury. The plaintiff stated that, up until then, his only work-related injury had been a mild back strain, which he sustained whilst working with a different employer. The condition settled within one or two weeks. Mr Wearne took a more detailed history of the relevant incident and expressed the opinion that the plaintiff’s injury was caused by heavy lifting in the workplace on a specific date in February 2010.
50 Mr Daryl Nye, neurosurgeon, initially saw the plaintiff at the request of the defendant on 2 August 2011. The history that he took related only to what occurred on 2 February 2010. He also recorded that other aspects of the medical history did not have relevance. The plaintiff denied prior back pain of significance.
51 Thus, when leave was granted to the plaintiff to bring proceedings, it was contemplated by everyone, including every doctor, that what was being looked at was injury sustained on a specific day. It was not contemplated that the course of employment was contributing to the injury.
52 A case that is substantially similar to that now before the Court is Gilford v Freshmore (Vic) Pty Ltd [2012] VSC 191, being a decision of Hargrave J. In that case, the plaintiff was alleging that he sustained injury to the back when lifting a heavy load of reinforced steel on a particular date in July 2003. He had a number of exacerbations thereafter. Hargrave J had before him a number of documents supporting the plaintiff’s serious injury application. There was also a draft Statement of Claim alleging the occurrence of injury in the course of employment on a particular day, namely 11 July 2003. No subsequent aggravation was alleged. The Authority had granted to the plaintiff a serious injury certificate. Leave had been granted for the injury which occurred in the circumstances alleged in the draft Statement of Claim. In other words, it is a similar situation to the present case.
53 Returning to Gilford, the plaintiff commenced proceedings in the Supreme Court substantially in the form of the draft Statement of Claim, alleging the occurrence of specific injury on a specific date. It did not allege subsequent injury or aggravation. Subsequently, and after the close of pleadings, mediation and the like, the plaintiff applied to amend his Statement of Claim on the basis that he had sustained further injury to the back in the course of his employment over the years between 2004 and 2010.
54 Hargrave J referred to Kruisselbrink, setting out some of the principles expressed therein. However, he did not allow the proposed amendment. He stated that it was clear from the serious injury certificate that it was limited to the consequences of the initial injury suffered by the plaintiff at work on 11 July 2003 and consent was not given for proceedings in respect of any further injury suffered at the workplace, this including any aggravation of the initial injury.
55 In the present case, the Court is in a stronger position than that in Gilford. That is because, in the present case, the plaintiff has not referred to anything other than what occurred on 2 February 2010 as having been causative of injury. In Gilford, there were some other references in the affidavit to repeated aggravations, repeated surgery and the like.
56 In the present case, there was a meeting of minds between the plaintiff and the Authority at the time that leave was granted. There was a discrete injury suffered on 2 February 2010. That has been the situation throughout.
57 Turning to things that have occurred since the granting of leave and the issuing of the Writ, such matters support the view that the plaintiff’s injury was sustained on 2 February 2010 as he has deposed to and as the medical evidence shows. The original Statement of Claim was in identical terms to the draft Statement of Claim – that is, pleading injury only on 2 February 2010. The Writ to which the Statement of Claim was attached was dated 12 November 2013. A couple of weeks later there was an amendment altering the name of the defendant, but otherwise the cause of action remained the same. The plaintiff’s interrogatories were served almost 12 months after the Writ was issued. They enquire only about what occurred on 2 February 2010. Any interrogatories about usual duties are directed towards what occurred on the day. The defendant’s relevant interrogatories similarly are directed towards 2 February 2010 only.
58 Similarly, the medical opinions that have been obtained by the parties since the issue of the Writ are all directed to injury on a particular day. What has been said in the report of Mr Kossmann is just background, other than his observations concerning injury on the specific day. Reports obtained by the plaintiff since the issuing of the proceeding have also focussed only on injury on the specific day. These reports are from Dr Leslie Roberts, neurologist; Dr Clayton Thomas, consultant in rehabilitation and pain medicine; and there is a vocational assessment report from Ms Katrine Green. As with Mr Kossmann, these reports contain no commentary about any sort of contribution from the work generally. The report of Dr Roberts contains references to some back pain two or three times a year, which was attributed to heavy work, but which would usually come good. About two years prior to the relevant injury, the plaintiff had an episode when he had more pronounced back pain after taking a gear down from a crane. This took a little longer to settle. Thus, Dr Roberts knew about the earlier work performed by the plaintiff, but makes no connection between that and the plaintiff’s injury. The report of Dr Clayton Thomas contains nothing concerning the plaintiff’s general work having any impact upon his condition. Similarly, there is nothing of note in the report of Ms Green concerning injury sustained by reason of work over the years.
59 Since the issue of the Writ, the defendant has had the plaintiff examined by Mr Michael Dooley, orthopaedic surgeon, and Associate Professor Peter Doherty, consultant psychiatrist. Mr Dooley specifically related the occurrence of injury to the incident of 2 February 2010, which is consistent with the history which the plaintiff gave him. Associate Professor Doherty took a history that the plaintiff occasionally suffered a sore back when at work, which he thought to be due to general wear and tear. He would get sharp pains in his back. He felt something go in his back in February 2010.
60 Even if the Court finds that the plaintiff is not limited by the terms of his serious injury application, there are still important considerations in determining whether he should be allowed to amend at this late stage. In this regard, reference is made to the Ruling of J Forrest J in Matthews v SPI Electricity Pty Ltd(Ruling No 6) [2012] VSC 70, which Ruling in turn refers to the decision of Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136. In paragraph 32 of Matthews, his Honour sets out the relevant factors as summarised by Vickery J in Namberry.
61 Turning to such factors, in the present case the defendant is not saying that there is some irreparable element of unfair prejudice that would be caused by the amendment. However, there would be a substantial delay, because the plaintiff is opening up an 11‑year period which no one has considered. The matter is listed to be heard in the Latrobe Valley circuit in less than six weeks. That hearing could not go ahead. Apart from delay, there would be wasted costs. There has been no explanation as to why the plaintiff is seeking to make this amendment at a very late stage. The plaintiff has put his case on one basis. Why there has been a change of mind is not clear. There is no medical evidence which comments about any causative link between the period of employment and the injury.
62 In Matthews, J Forrest J added another factor to the list set out by Vickery J in Namberry. That extra factor involves the concept of the pleading being so obviously futile that it would be struck out had it appeared in the original pleading. His Honour referred to s63 of the Civil Procedure Act 2010. If the amendment has no reasonable prospect of success at trial, that is a highly relevant factor. That must mean on the basis of material currently available. Reference is made to s18 of the Civil Procedure Act. There has to be a proper basis for a claim at the time of making or responding to it. This is also evident from s42, which relates to certification of a proper basis for a claim.
63 In the present case, this is fatal to the plaintiff’s claim. There is no explanation or basis for extending and widening the cause of action. The only references to heavy work over a period are by way of background. Every document specifically connects the injury to the incident of 2 February 2010. Accordingly, the amendment ought not be allowed.
The reply on behalf of the plaintiff
64 Mr Wicks was permitted to give a brief reply, which could be summarised as follows.
65 In Gilford, Hargrave J relied upon the Judgment of Kaye J in Georgopoulos v Silaforts Painting Pty Ltd and Ors [2012] VSC 56. However, the matter of Georgopoulos went to the Court of Appeal and the decision of Kaye J was overturned. Given that the Court of Appeal found that Kaye J had erred, the reliance by Hargrave J in Gilford upon the decision of Kaye J raises real questions about the applicability of Gilford. Rather, reliance should be placed upon what was said by J Forrest J in Kruisselbrink, to the effect that it is neither the date of injury nor the circumstances that need trouble the Authority when making its determination.
66 The practical consequences of refusing an amendment such as this should also be considered. In many serious injury certificates there is reference to a specific date, but the trials in fact run on the broader proposition of “in the course of the employment and in particular on such and such a day”. If it could not be done in this way, a well-advised plaintiff would dispute the certificate, but how can this be done, given that it has been granted? Does the plaintiff proceed with an originating motion in order to determine the terms of the certificate?
67 Reference is made to what was said by Beach J in paragraph 11 of Harvey, namely:
“…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.”
Certainly things changed forever for the plaintiff on 2 February 2010. However, that is not incompatible with alternative or cumulative causes in respect of the injury.
68 Beach J expanded upon this in paragraph 12 of his Judgment . His Honour stated that the fact that there were references in the medical reports to a specific incident did not gainsay the proposition that the leave actually granted by consent was in respect of an injury that occurred on a specific date, but not limited in respect of any particular incident that might have caused that injury. There was no limitation that confined the plaintiff to a cause of action based upon work performed on or about that specific date. The plaintiff was at liberty to assert that work prior to the date was a cause of injury suffered on it. Whether the evidence would bear out such a claim is not to the point.
69 In other words, whether a plaintiff can bring a broader-based cause of action is not to be determined by a bureaucratic act at a particular time.
70 In relation to the decision in Ronchi, that in fact involved a situation where there had been a trial of a serious injury application, with evidence led and transcript available. At paragraph 39 of Ronchi, Osborn J stated as follows:
“In my view both the terms of the application form and the terms in which the application was made to the Court, made clear that the plaintiff’s case was that he was injured during 1995 as the result of ongoing stress to the plaintiff’s back culminating in the incident of 21 September 1995.”
That is similar to the basis upon which the present application is made.
71 Descriptions of the heavy work contained in the medical reports are not background. They relate to the nature of the employment. Common sense dictates that heavy, repetitive work can result in repetitive trauma to the spine. Reference is made to the content in the supporting affidavit of the plaintiff which relates to the nature of his work.
72 Further, the defendant did in fact interrogate as to work previously done by the plaintiff. Reference is made to Interrogatory 22. Clearly the defendant was interested in what had been occurring.
73 There has been compliance with the Civil Procedure Act. The material before the Court supports the proposition that the plaintiff had been involved in heavy and repetitive work over a long period of time. Notoriously, such work has the potential to cause harm to the spine. Similarly, various of the medical reports have set out the history. This must have some significance.
74 Probably from the outset the injury should have been described in a way that included reference to the course of employment. If, at the time that the actual Writ had been issued, there had been reference to the course of employment, even though such had not been referred to in the draft Statement of Claim, the present dispute would not be occurring.
Ruling
75 In my opinion the proposed amendments to paragraphs 3 and 3A of the Amended Statement of Claim should be allowed. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(a)What was said by J Forrest J in Kruisselbrink seems to me to be particularly apt to a situation such as that in the present case. When the Authority is considering whether or not to grant a serious injury certificate, its focus should be not upon the cause of action which the injured worker may have, but on the nature and effects of the compensable injury – see paragraph 45 of Kruisselbrink. Its focus should be upon whether a worker has suffered an injury which is compensable within the meaning of the Act and serious within the meaning of the Act. Mr Wicks referred me to what was said by J Forrest J at paragraph 62 of Kruisselbrink. I have set out that quotation in paragraph 30 above. Without repeating it in full, J Forrest J referred to the fact that the granting of a certificate specifying injury occurring on a particular day is a convenient way of identifying the injury, but this cannot confine, as at the stage of granting the certificate, the worker to a specific work activity which is productive of the injury. That is not the task of the Authority.
I would also point out what was said by J Forrest J at paragraph 63(2):
“The determination of the Authority that an injury is serious, relates to the injury alone; the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999.”
At paragraph 63(5) his Honour stated as follows:
“An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that – interlocutory, not final. An order striking out part or all of a worker’s common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself. Similarly, in the case of amendment, absent some other consideration (such as set out in Aon Risk Services Australia Ltd v Australian National University), unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.”
Applying that approach to the present situation, the amendments in question should be allowed unless I am satisfied that such amendments would be futile. I shall return to that issue. However, in general terms amendments such as this would normally be granted and then, as stated by J Forrest J, properly agitated at trial.
(b)Ms Britbart placed some reliance upon the decision of Hargrave J in Gilford. However, I agree with the submission of Mr Wicks to the effect that a question mark hangs over the issue of how much reliance can be placed on that Judgment in the present situation. Of course, and with respect, that is in no way any criticism of Hargrave J. In apparently placing some reliance upon the decision of Kaye J in Georgopoulos, his Honour was the victim of some unfortunate timing. Kaye J handed down the decision in Georgopoulos on 27 February 2012. Hargrave J handed down the decision in Gilford, apparently placing some reliance on Georgopoulos, on 15 May 2012. On 8 August 2012 the Court of Appeal determined that the decision of Kaye J was, in essence, wrong, and upheld the appeal against it.
Further, in Gilford at paragraph 21 and when discussing the Judgment of Kaye J in Georgopoulos, Hargrave J stated as follows:
“In reaching this conclusion, Kaye J gave express consideration to the decision of J Forrest J in Kruisselbrink, and stated that the reasoning in Kruisselbrink and other cases to like effect supported his construction of the Act. I agree with and adopt the reasoning of Kaye J.”
However, the Court of Appeal in Georgopoulos observed as follows at paragraph 110:
“Lastly, we record for completeness that in support of its contentions, the first respondent also took us to ... the decisions of Kruisselbrink v Nationwide Management Services Pty Ltd, Ronchi v Alcoa Portland Aluminium Pty Ltd and Harvey v Methodist Ladies College. None of these decisions deal with the issue the subject of this appeal.”
In other words, the Court of Appeal effectively dismissed the proposition that Kruisselbrink and like cases supported the opinion expressed by Kaye J in Georgopoulos and adopted by Hargrave J in Gilford.
I would also refer to paragraph 113 of the decision of the Court of Appeal in Georgopoulos. The Court of Appeal there stated the following:
“Likewise, the decisions of Kruisselbrink, Ronchi and Harvey are not determinative of the present issue. Those cases concern the parameters of the compensable accident or process underlying the relevant claim and/or whether the particular worker was seeking to amend to recover damages for an injury not arising out of the alleged event that gave rise to the relevant injury.”
The conclusion to be drawn from the above observations would seem to be that the cases to which the Court of Appeal referred did not relate to the issue to be determined in Georgopoulos. There would seem to be specific disagreement with the proposition advanced by Kaye J that the reasoning in Kruisselbrink and other cases to like effect supports his construction of the Act, an approach adopted by Hargrave J in Gilford. The end result is that it seems to me that a substantial question mark must hang over the force which is to be attributed to the decision in Gilford. It would seem that what was said in Kruisselbrink cannot be interpreted as extending so far as to provide support for what was said in Gilford. What was said by J Forrest J seems to me to provide clear support for the propositions advanced by Mr Wicks.
(c)In addition, bearing in mind the observations of the Court of Appeal in Georgopoulos, what was said by Beach J in Harvey would also remain unaffected by the decision in Gilford. I would refer to what has been set out above in relation to Harvey. Further, in Harvey, having referred to the various authorities, Beach J stated in paragraph 11 that there was nothing impermissible in a plaintiff alleging that different aspects of 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. I note that J Forrest J in Kruisselbrink referred to the decision in Harvey and to the passage to which I have referred in this Judgment. In paragraph 56 of Kruisselbrink, J Forrest J said the following:
“The approach of Beach J [in Harvey] is consistent (sic) what was said by the Court of Appeal in Brambles [Brambles Limited v Wail [2002] VSCA 150], namely that 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 (i.e. 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 that there is no basis for linking the serious injury to the work activities.”
That it is the injury, rather than the prospective cause of action, which is the focus of the grant of leave is again emphasised.
In summary, what was said by Beach J in Harvey has been referred to and followed by J Forrest J in Kruisselbrink.
(d)J Forrest J in Kruisselbrink referred to the decision in Brambles, as is evident from what has been said above. At paragraph 44 he quoted a lengthy extract from the decision of the Court of Appeal, placing particular emphasis upon the following passage:
“The focus of the leave application is whether, in the opinion of the judge asked to grant leave, the injury is a ‘serious’ one within the meaning of s.135A(19).”
J Forrest J went on to say that exactly the same attention is required when the Authority issues a certificate pursuant to s134AB(16)(a).
(e)I am not of the view that the proposed amendments are futile. It seems to me that the potential ingredients for an arguable case implicating the course of employment over the years exist. That the plaintiff was involved in duties requiring him to constantly twist, rotate, manoeuvre in tight spaces, lift and carry heavy objects and the like is a proposition which, for the purposes of the present dispute, was effectively not challenged and which I accept. True it is that no medical examiner has specifically addressed the question of whether such heavy work over the years has played a part in the production of the compensable injury.
However, a history of such heavy and awkward work has been taken by specialist medical examiners such as Mr Kossmann and Mr Poplawski. Mr Kossmann has taken a history of the plaintiff being involved in heavy physical work and suffering increasing back pain over the years. Mr Poplawski, examining on behalf of the defendant, has also taken a history of previous episodes of back pain associated with lifting activities. Dr Roberts, neurologist, has alluded to a history of the plaintiff suffering some back pain two or three times a year, this being attributed to heavy work. About two years prior to the relevant injury, the plaintiff had an episode of more pronounced back pain after taking a gear down from a crane, and this took a little longer to settle. Whilst Associate Professor Doherty is a consultant psychiatrist, he took a history of the plaintiff occasionally suffering a sore back when at work. He would get sharp pains in the back.
Whilst it is true that no medical examiner specifically linked work over the years to the compensable injury, that is hardly surprising. However, that is not to say that the proposed amendments would be futile. To say that they would be because of the absence of a direct medical comment has the potential to get one involved in something of a circular argument. As argued by the defendant, the case has always proceeded on the basis of injury on a specific day. It is then no surprise that medical examiners do not express opinions based on anything other than injury on a specific day. Without the proposed amendments, there would be no need for medical examiners to be questioned about or provide opinions concerning injury in the course of employment. To say that the absence of such opinions effectively renders the amendments futile is then to beg the question. The whole purpose of the proposed amendments seems to be to add the expanded factual base which seems to be available, presumably with a view to obtaining expert opinion in relation to it. It may be that such opinion will not support the proposition that the course of employment played a role. However, it is certainly not out of the question that a medical opinion or opinions will implicate the course of employment. The course of employment may become implicated or it may not. That is something which can be tested at trial. However, that does not mean that the proposed amendments would be futile. On the basis of the available material, that cannot be said.
(f)I am also of the view that a distinction can be drawn between cases such as the present and those where there has been a trial in relation to the serious injury application and a determination by the Court. That was the situation in Ronchi. I note that, in that decision, Osborn J referred to a careful reading of the trial judge’s reasons as being part of the process which he had undertaken. Osborn J looked at the terms of the application form, the terms in which the application was made to the Court and the reasons of the trial judge in the context of the application before him. In such circumstances, it is understandable that a subsequent Court might see difficulties in permitting an amendment which broadened the basis of a claim beyond that which had been put before the judge at first instance.
(g)A similar situation was encountered by his Honour Judge Parrish in Kaltsis v Ice Design Pty Ltd [2015] VCC 28. His Honour was required to rule upon a situation involving proposed amendments to the Statement of Claim prior to the commencement of a jury trial. The matter was one involving s134AB(16)(b) of the Act. His Honour was specifically required to consider the constraints imposed upon the plaintiff’s common law claim by reason of an Order of his Honour Judge Misso, who had heard the contested application for leave.
His Honour made a very careful ruling in which numerous authorities were considered. These included Kruisselbrink. His Honour specifically pointed out that it had to be borne in mind that J Forrest J was dealing with circumstances where certificates had been granted by the Authority – see paragraph 33(e). Bearing in mind the evidence that had been placed before Judge Misso, Judge Parrish came to the conclusion that the grant of serious injury made at the trial of the application was limited to a psychiatric condition which developed after the plaintiff resumed work following the accident in question and as a consequence of her perception of the way that she was treated following such resumption of work. His Honour found that the plaintiff was limited to pleading causes of action in negligence or breach of statutory duty in relation to employment after resumption of work. This, in essence, had been the basis of the finding of serious injury made by Judge Misso. In particular, Judge Parrish found that the plaintiff was not entitled to allege that she suffered a compensable injury on the specified date which was a cause of her current psychiatric state. His Honour pointed out that the claim had been specifically put, at the serious injury trial, on the basis of psychiatric damage suffered after the return to work, this following the specified incident of injury.
Clear distinctions between that situation and the present case are the contested trial of the serious injury application, the manner in which the issues were presented and the ultimate decision of Judge Misso. As earlier stated, Judge Parrish specifically pointed out that this was to be contrasted with the situation in Kruisselbrink, where J Forrest J was dealing with a situation where a certificate had been granted by the Authority, as opposed to there being a contested trial.
I would respectfully agree with the distinction made by his Honour between situations where a certificate had been granted by the Authority and those where there has been a contested trial and determination. Both Ronchi and Kaltsis are examples of the latter situation.
In summary, in a case such as the present, where there has been no trial and a certificate has been granted by the Authority, it seems to me that the observations made by J Forrest J in Kruisselbrink are particularly relevant. I regard them as being applicable to the present situation.
(h)I am not persuaded by the arguments advanced by Ms Britbart as to the unfairness of allowing amendments of the type sought at this stage of the proceeding. I agree that it is likely that the matter will have to be adjourned from the upcoming Latrobe Valley circuit. However, Ms Britbart quite properly stated that there was no major element of unfair prejudice that would be occasioned by reason of the amendments. Whether or not there would be wasted costs of any great magnitude is not clear. The Latrobe Valley circuit is still some weeks away. Doubtless additional medical reports will be required, but I would imagine that these would be supplementary reports. In any event, when balancing out the factors for and against the present application, I do not regard the issue of wasted costs as being significant. In fact, whether or not any costs would be wasted might be a matter of debate. In relation to why the plaintiff is seeking to make the amendments at a late stage, Mr Wicks has stated quite frankly that the broader pleading embracing course of employment should have been made earlier. However, after taking into account the various factors set out in Matthews and Namberry, and bearing in mind the provisions of the Civil Procedure Act, it still seems to me that the proposed amendments should be allowed.
76 The proposed amendments to paragraph 4(l) and paragraph 5 of the Amended Statement of Claim were not the subject of dispute in the present Application. These deal with the Occupational Health & Safety Regulations 2007 and the Manual Handling Code of Practice. A ruling does not seem to be required in relation to these amendments – see T58. Accordingly, I make no determination in respect of them.
Conclusion
77 The plaintiff is successful. I shall allow the proposed amendments which are set out in paragraphs 3 and 3A of the proposed Further Amended Statement of Claim.
78 I shall hear the parties as to any ancillary orders that are required.
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