Tinworth v WV Management Pty Ltd
[2009] VSC 552
•2 December 2009 (Reasons 3 December 2009)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WODONGA
COMMON LAW DIVISION
No. 1200 of 2007
| BRENDAN TINWORTH | Plaintiff |
| V | |
| W.V. MANAGEMENT PTY LTD and NORVIC FOOD PROCESSING PTY LTD | First Defendant Second Defendant |
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JUDGE: | J. FORREST J | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 1 December 2009 | |
DATE OF RULING: | 2 December 2009 (Reasons 3 December 2009) | |
CASE MAY BE CITED AS: | Tinworth v W.V. Management Pty Ltd & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 552 | |
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Practice – application to amend defence – application made on day of commencement of jury trial – substantive amendments sought to be made to defence – principles in Aon Risk Services v Australian National University considered – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC with Mr M. Waugh | Harris Lieberman |
| For the First Defendant | Mr M. Titshall QC with Ms S. Manova | Wisewould Mahony |
| For the Second Defendant | Mr J. Moore QC with Mr D. McWilliams | Moray Agnew |
HIS HONOUR:
Introduction
The plaintiff, Brendan Tinworth sues W.V. Management Pty Ltd (“W.V. Management”) and Norvic Food Processing (“Norvic”) in negligence alleging that he contracted Q fever whilst employed at the Wodonga Abattoirs (“the abattoirs”).
The case was called on for trial (to be heard by a jury of six) on the morning of 1 December. However, counsel for W.V. Management, Mr Tinworth’s employer during his period of employment at the abattoirs, applied to amend its defence in accordance with a proposed amended defence (“the draft”).
The draft alleged three new matters:
(a) a revised plea of contributory negligence;
(b) an allegation that the plaintiff voluntarily assumed the risk of contracting Q fever as part of his employment with W.V. Management,
(c) that by reason of s 134AB(12) of the Accident Compensation Act (“the Act”), the plaintiff was precluded from making a claim for damages for pecuniary loss;
Mr Tinworth’s claim was commenced in January of 2007.[1] Allegations (b) and (c) were first raised in the draft which was provided to the Court on the evening prior to the commencement of the trial. There is no contest concerning the amendment to the allegation of contributory negligence. However, counsel for Mr Tinworth opposes the other two amendments contained in the draft.
[1]The original claim was for pain and suffering only. In August of this year, an additional claim for pecuniary loss was added pursuant to the order of Daly AsJ.
I have concluded, consistent with what was said by the High Court in Aon Risk Services Australia Limited v Australian National University[2] (“Aon”) that, given a jury trial is ready to commence, this application is made far too late and should not be acceded to.
[2][2009] HCA 27, (2009) 83 ALJR 951.
In addition, I consider that the plea of voluntary assumption of risk has, on the facts alleged within the draft, no reasonable prospect of being left to the jury as a triable issue. I am also of the view that the contention that Mr Tinworth is precluded by the provisions of s 134AB(12) of the Act from making a claim for damages for pecuniary loss cannot be sustained.
I should add that, given the manner in which these points have been raised, I have reached the conclusions referred to in [6] without the benefit of considered reflection.
Background facts
W.V. Management is a labour hire organisation which supplied labour and staff for work at the abattoirs, said to be operated by Norvic.
Mr Tinworth was employed by W.V. Management as an abattoir worker between October 2000 and September 2004. He asserts that he contracted Q fever as a result of his employment during that period. A claim for compensation was lodged on 27 September 2004 in respect of the contraction of the disease.
Mr Tinworth was, pursuant to s 134AB(15) of the Act, deemed to have sustained a serious injury by reason of his contraction of Q fever – his degree of impairment being 30% or more. This means that Mr Tinworth may, subject to compliance with the provisions of s. 134AB, issue proceedings for damages.
Mr Tinworth’s alleged injuries are, indeed, serious. In 2004, at the age of 26 he underwent open heart surgery involving an aortic valve replacement – said to be the result of contracting Q fever. Moreover he faces the prospect of a similar procedure in the near future.
On 25 January 2007, Mr Tinworth issued an Originating Motion naming W.V. Management and Norvic as defendants. On 21 June 2007, Master Evans ordered by consent that the proceeding continue as if commenced by writ and made a series of interlocutory orders. The statement of claim subsequently filed on Mr Tinworth’s behalf in 2007 made a claim for pain and suffering damages only.
It does not appear that W.V. Management filed a defence although it seems likely that a defence was served on Mr Tinworth’s solicitors in October 2007.
Further interlocutory orders were made by Masters or Associate Justices of the Court on 19 October 2007, 20 November 2007, 5 February 2008, 15 April 2008, 21 May 2008, 5 June 2008, 25 July 2008, 26 August 2008, 7 October 2008, 29 October 2008, 17 November 2008, 5 December 2008, 13 February 2009, 23 April 2009 and 18 August 2009.
At the hearing on 23 April 2009, Kings AsJ ordered that the matter be set down as a trial to be listed at the Wodonga circuit sittings on an estimate of two weeks’ duration.
On 18 August 2009 Mr Tinworth was granted leave by Daly AsJ to amend his statement of claim. Neither defendant appeared at the hearing of this application.
On that day, 18 August, the solicitors for W.V. Management sent by facsimile, to Mr Tinworth’s solicitors, their consent “to your client’s application to serve an amended Statement of Claim on the basis that the costs of the application be reserved”. Subsequently, and on the same day, a further letter was forwarded in which the solicitors reserved “the right to argue that the statutory counter offer is invalid and therefore be deemed to be the maximum. We confirm we have discussed this with both yourself and your counsel”.[3]
[3]Exhibit P1 on the application.
On 25 November 2009 in Melbourne, I conducted a callover of cases in the Wodonga List to determine whether this proceeding was ready for trial. Both W.V. Management and Norvic were represented by their solicitors. The case was confirmed as a jury trial and was placed first in the list.
On 1 December 2009, the day on which the trial was due to commence, counsel for W.V. Management made an oral application, unsupported by summons or affidavit, to amend the defence in the form I have described.
The nature of the proposed amendments
The amendment in the draft to plead voluntary assumption of risk is based on the following alleged facts: at Mr Tinworth’s induction, he was given warnings, instructions and advice concerning the risk to his health by reason of exposure to and of contracting Q fever. He was given information sheets and advised of the risks of exposure to Q fever from working in the abattoirs. He was told that Q fever vaccination was not available and he could choose not to start work, but that if he did, he would be employed in a low risk area and would be required to use a mask and was instructed in the proper use of a mask. It is then said that by reason of such an explanation, Mr Tinworth “chose to work at the second defendant’s premises and thereby voluntarily accepted the risk of exposure to and the risk of contracting Q fever”.[4]
[4]Paragraph 13 of the draft.
The amendment in the draft which asserts that Mr Tinworth has no entitlement to make a claim for pecuniary loss relies upon s. 134AB(12) of the Accident Compensation Act. It provides as follows:
“The worker must not commence proceedings in accordance with this section, other than an application under subsection (16)(b) or the commencement of proceedings with the consent of the Authority under subsection (20) or (20A), unless-
(a) the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b) the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c) if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d) the Authority or self-insurer does not accept that counter offer within 21 days after it is made; and
(e) the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under subsection (14), not more than 30 days after the day on which the counter offer is deemed to have been made.”
Section 134AB(28) is also relied upon and it reads as follows:
“In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (12)-
(a) if no liability to pay damages is established, the worker must pay the party and party costs of the employer, Authority or self-insurer and the worker's own costs;
(b) if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under subsection (12) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's party and party costs and its own costs;
(c) if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under subsection (12), the worker must pay the party and party costs of the Authority or self-insurer and the worker's own costs;
(d) if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under subsection (12) but less than 90 per cent of the worker's statutory counter offer under that subsection, each party bears its own costs-
and the court must not otherwise make an order as to costs.”
In summary it is said by WV Management that by restricting his counter-offer pursuant to s.134AB(12)(c) to a claim for pain and suffering Mr Tinworth is confined to recovery for that head of damages alone.
Submissions of the parties
Mr Titshall QC, who appeared with Ms Manova for W.V. Management, contended that whilst the voluntary assumption of risk amendment was late, it should nonetheless be permitted, as the factual basis for it was well understood by Mr Tinworth by its disclosure in the answers to interrogatories of both W.V. Management and Norvic. Mr Titshall acknowledged that a defence of voluntary assumption of risk is rare in industrial accident litigation, but in this case, given the facts were set out in the answers to interrogatories, it was, he said, in the interests of justice to permit this fresh defence.
Mr Titshall argued that in relation to the claim founded upon s 134AB(12) of the Act, Mr Tinworth had made a statutory counter offer pursuant to s 134AB(12)(c) limited to a claim for pain and suffering. In the context of the Act, particularly the provisions of sub-ss (12) and (28), it was implicit that he had confined his claim to pain and suffering only and could not, at a later point of time, revive a claim for pecuniary loss as he had done in the amended Statement of Claim. To do so, he argued, was contrary to the scheme of the Act which is designed to promote pre-issue negotiations with costs penalties applicable to unrealistic counter-offers.
Mr Tobin SC, who appeared with Mr Waugh for Mr Tinworth, relied upon what was said by the High Court in Aon. He submitted it was too late for W.V. Management to amend its defence. Further, he contended that the argument concerning voluntary assumption of risk was a new allegation and the answers to interrogatories relied upon by W.V. Management as disclosure of the relevant facts had all been directed to the question of breach of duty. Moreover, he said that a number of the documents relied upon in the draft were inadmissible as they were precluded by s 134AB(11) of the Act. In any event he said that the claim based on voluntary assumption of risk could never succeed at trial.
Next, Mr Tobin argued that the defence based on s 134AB(12) of the Act, precluding a claim for economic loss, was based upon a misconception of the purpose of the section, which simply provided a mechanism for offers and counter offers and did not descend into detail as to the splitting of claims such as one for pain and suffering and one for pecuniary loss. He contended that Mr Tinworth made his statutory offer in writing and then commenced his proceedings within the time prescribed by s.134AB(12). He had, therefore, complied with the Act and was entitled to bring his proceeding as he saw fit. He accepted that the change in the nature of the claim (to include a claim for pecuniary loss) may mean that the statutory offer was not valid and therefore sub-s (14) would deem the statutory offer to be the maximum amount, at least for pecuniary loss damages. But it did not, so he argued, preclude the bringing of the claim.
Analysis
In Aon the High Court set out the principles to be applied in an application to amend a pleading at a late stage in a proceeding. It disavowed statements of principle contained in the Court’s previous decision in Queensland & Anor v JL Holdings Pty Limited[5] and held as follows:
[5](1997) 189 CLR 146.
(a) Courts must now consider the wider public interest and the efficient use of limited Court resources when deciding whether to grant an application to amend a pleading.
(b) Parties do not have an entitlement to raise any arguable case at any stage of proceedings, subject only to payment of costs.
(c) Amendments that produce delay impact on the entire Court system and affect parties desirous of utilising that particular Court system.
In particular, the Court said in the joint judgment:[6]
“An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases.
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.” (Emphasis added)
[6]Aon Gummow, Hayne, Crennan, Kieffel, Bell JJ [111]-[113].
Given the importance attached by Courts to the decision in J.L. Holdings, the following statement by French CJ is of significance[7]:
“It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.” (Emphasis added)
[7]Aon French CJ [30]
This point was taken up in the joint judgment:[8]
“What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied ‘in extreme circumstances’ to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The ‘right’ spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power.”
[8]Aon Gummow, Hayne, Crennan, Kieffel and Bell JJ [95].
In the judgment of Heydon J, in Aon his Honour cited with approval a portion of a judgment of Bryson J which, as his Honour noted, merited preservation from “the oblivion of unreported judgments”. In the context of this case, it is worth citing part of that judgment:
“I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty.”[9]
[9]Aon [133] citing Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2007] NSWSC 753 [15]
The application to plead voluntary assumption of risk
The application by W.V. Management to plead voluntary assumption of risk should be refused for the following reasons.
First, whilst I accept that the factual substratum of the defence has been known to Mr Tinworth, it was thought to be relevant only in the context of the asserted breach of duty on the part of W.V. Management. The defence of voluntary assumption of risk is rare, if not close to extinct, in the context of industrial accident litigation. When canvassed the defence raises markedly different considerations to those relevant to breach of duty, namely, identification of the particular risk, the level of knowledge of the plaintiff of the risk, the agreement of the plaintiff to undertake the risk and whether that risk is the one that eventuated in terms being the cause of the plaintiff’s injuries. None of this could have been reasonably anticipated as an issue in this case until the draft was produced on the day before the trial was due to commence (30 November).
Second, the timing of the application. The application was first made as a jury of six waited to be chosen from a jury panel summonsed to attend Court that morning. The only foreshadowing of the application was made in the afternoon of the previous day. The jury was subsequently empanelled and sent away pending the resolution of the application to be heard that afternoon. The proceeding had been on foot for nearly three years and W.V. Management had been aware of the nature of Mr Tinworth’s claim for nearly six years. No amendment had been sought, notwithstanding the Court dealing with applications in the proceeding on no less than sixteen occasions.
Third, W.V. Management not only failed to raise this issue at any of the previous hearings before Masters or Associate Justices of this Court, but also at the callover I conducted on Wednesday 25 November 2009. At that hearing there was no mention of the application to amend the defence. One of the purposes of the callover was to ensure that the circuit could commence and proceed without interruption. Not a word was said of any pleading amendments or the possibility of the trial being delayed pending argument over the state of the pleadings. This is of considerable relevance, particularly in light of the observations made by the High Court in Aon to which I have referred. Circuit litigation in the Supreme Court occurs in regional centres generally on one occasion each year. The sittings usually occupy three to four weeks. There is limited time and Court resources available to the parties; it is imperative that a party ensures his or her case is ready to proceed, and certainly, alerts the Court to any interlocutory issue, before the sittings commences. This assists both the Court and other parties with cases in the list and encourages public confidence, particularly in regional areas. In this case, W.V. Management simply remained silent until the last moment. It is not, of course, to be punished for its behaviour, but, in light of the Aon principles, it is relevant that it failed to take any opportunity to alert the Court to its proposed amendments until the last possible moment.
Fourth, the lack of any explanation whatsoever for failing to make the application at any of the hearings before Masters or Associate Justices of this Court, or at the callover, is, simply put, remarkable. Aon makes it clear that where a party seeks an indulgence in the form of a late amendment an explanation should be proffered for its failure to make the application in a timely fashion and as provided for by the Rules of Court. Not a shred of evidence has been led to explain why this application was made on the first day of the scheduled jury trial. The provision (or absence) of a satisfactory explanation is relevant in determining whether to grant such an application.
Fifth, if the amendment had been sought in a timely fashion, it would have been open to Mr Tinworth to argue it should not be permitted on the grounds that it did not disclose an arguable defence. That application would have been considered by an Associate Justice of the Court and determined after hearing submissions on both the law and pleadings. In this case, Mr Tinworth has been denied this opportunity. In its place, I am required to determine, whilst an empanelled jury awaits my ruling, the validity of the plea. To put it mildly, this is unsatisfactory.
In summary the conduct[10] of W.V. Management in making this application at the last moment without any explanation for its failure to do so, during the three years since the claim was issued, is such that there is no persuasive reason for an exercise of the Courts’ discretion to permit the amendment sought on this issue. I would refuse the application on this basis alone.
[10]See [31] above.
Even if I thought the amendment should be allowed, it seems to me there are insurmountable difficulties facing this defence.
The extent of Mr Tinworth’s knowledge of the risk of Q fever is premised, in a large part, upon the provision of certain documents by W.V. Management to Mr Tinworth. If this application had been made in a timely fashion, the question as to the admissibility of those documents[11] could have been considered and ruled upon at that time.
[11]Section 134AB(11) of the Act
In any event, I think it highly unlikely that a defence of voluntary assumption of risk can be made out on the facts set out in the draft. The defence requires proof that the plaintiff voluntarily and knowingly accepted the risk which led to his or her injuries[12]. Rarely is such a defence tenable in an industrial accident situation – as many aspects of employment, particularly those involving manual labour, carry inherent risks. A defence of voluntary assumption of risk on the part of an employee cannot be founded on awareness, at the commencement of employment, of risks associated with that employment and, perhaps, the employer’s efforts to endeavour to reduce his or her exposure to such risks. Many employees taking on employment are aware that there are particular risks associated with the job. That is part of the contract of employment. That does not mean that an employee, voluntarily agrees to accept that risk by taking on the job. To the contrary an employee is entitled to expect, as the law requires, the employer to exercise reasonable care consistent with the non-delegable nature of the employer’s duty.[13] The employer is required, as far as reasonable care will permit, to reduce those risks bearing in mind considerations of occupational health and safety are part of an employer’s obligation to provide and enforce a safe system of work[14]. The fact that work involves certain dangers, does not mean there is a diminution of the duty – an employer is bound to take those dangers into account in formulating and enforcing the system of work.[15] An employee is not precluded from recovering damages based on an employer’s negligence merely because he or she understands the risks associated with a job and agrees to take it on – as W.V. Management argues. To adopt the words of Kirby J. in State of NSW v Fahy on this issue, “all the legal reasoning argues to the contrary”.[16]
[12]Rogenkemp v Bennett [1950] 80 CLR 292.
[13]Kondis v State Transport Authority (1984) 154 CLR 672.
[14]McLean v Tedman (1984) 155 CLR 306, 312
[15]Doumit v Jabbs Excavations Pty Ltd NSWCA 360 [71] – [72].
[16](2007) 232 CLR 486 [88]
This is of course not to say the factual matters relied upon by W.V. Management cannot be deployed to meet an argument by Mr Tinworth in relation to breach of duty.
The application to plead that the plaintiff’s claim is barred by s 134AB(12) of the Act
The considerations in determining the fate of this proposed amendment are somewhat different to those relating to the allegation of voluntary assumption of risk. Mr Tinworth did not seek to make a claim for pecuniary loss damages until early August of this year when he sought leave of the Court to amend the statement of claim to add this element. Although the correspondence between the solicitors is not entirely clear[17], I interpret it as meaning that W.V. Management consented to the amendment of the statement of claim, but reserved its right to argue that the statutory offer made by the worker pursuant to s 134AB(12)(c) of the Act did not comply with that sub-section and therefore sub-s (14) applied, deeming the worker to have made a statutory offer of the maximum amount of the damages.[18] Not only was there no opposition to the application, but there was also no suggestion, at that time, that Mr Tinworth was barred from making a claim for pecuniary loss.
[17]See [17].
[18]Section 134AB(22) sets thresholds and ceilings in relation to both pecuniary loss damages and pain and suffering damages.
When the proceeding was called over before me last Wednesday (25 November), the solicitor for W.V. Management did not suggest that the position adopted in August 2009 was likely to change nor that an application to amend the defence would be made at Wodonga – when the jury was ready to be empanelled.
The application to amend the defence to plead s 134AB(12) as a statutory bar to pecuniary loss damages should be rejected for the following reasons.
First the timing of the application, and I repeat the matters I set out in paragraph [34]. Whilst there was a far smaller window of opportunity for W.V. Management to take issue with the claim for pecuniary loss, its conduct is bewildering. Having consented to (or at the very least, not opposed) the amendment to the Statement of Claim and reserved its right to argue the question of costs, it has at the last moment asserted that Mr Tinworth is now precluded from maintaining a pecuniary loss claim. The appropriate time for the contest to be had was, clearly, at the time of the application to amend the Statement of Claim. Arguments about whether he was entitled to do so should have been dealt with at that time. It is simply not acceptable to make such an allegation at the eleventh hour or perhaps more accurately 11.59 am.
Second, W.V. Management initially reserved its right, sensibly, to argue a question relevant to costs. It then chose to raise a plea barring a significant part of Mr Tinworth’s claim. A Court should not encourage conduct such as this which in a sense smacks of approbation and reprobation. It can be assumed the decision to consent to (or not oppose) the application to amend, was made after thoughtful consideration of Mr Tinworth’s entitlement to bring a claim for pecuniary loss. The solicitors acting for W.V. Management are vastly experienced in this field of litigation and the decision to change tack dramatically on the eve of the trial, in my view, with the consequences it has caused to the orderly progress of the trial, undermines court management processes and, I think, public confidence.
Third, and this is related to the second point, there is no explanation by the solicitors or their client as to why this amendment is sought at the last moment. To the contrary, there is a deafening silence and not a hint as to why the argument has changed from a debate about costs to an assertion that the plaintiff is statute barred from bringing a claim for pecuniary loss. I repeat my observations at [36].
Fourth, there is the reasonable expectation of the plaintiff. The plaintiff’s pleaded injuries are significant. He is only 31 years of age and has already undergone open heart surgery and is said to require further similar surgery. He was entitled to think that, having succeeded in obtaining his amendment, he was able to pursue his claim for pecuniary loss, which is one of some magnitude. To permit this amendment at the last moment, which could arguably deprive him of that entitlement is, I think, unacceptable and brings the law into dispute.
Fifth, there is a real prospect that if W.V. Management was permitted to amend the defence, the trial would need to be delayed or postponed to the next sittings. Although counsel did not refer to this issue, I think there is at least an arguable case on behalf of Mr Tinworth that W.V. Management’s conduct in changing tack may amount to a waiver of its capacity to rely upon s 134AB(12) as a bar to the pecuniary loss claim. Arguably, it may also constitute an estoppel.[19] Certainly, Mr Tinworth would need to be given time to consider whether he wished to plead a reply to the amended defence which, in turn, would jeopardise the hearing of his claim at this sitting.
[19]See Commonwealth of AustraliavVerwayen (1990) 170 CLR 394.
For the reasons I have stated, I would refuse the amendment on discretionary grounds alone. However, I should, out of deference to the arguments of counsel, deal, as best I can in the limited time, with the nature of the amendment itself.
No evidence was led to support this application. However it appears to have been accepted that Mr Tinworth had complied with the conditions of s 134AB(12) save for, so it was said, the fact that his counter-offer in accordance with s. 134AB(12)(c) being confined to pain and suffering.
I do not accept that s 134AB(12) can be relied upon to preclude Mr Tinworth from maintaining a claim for pecuniary loss at trial.
Here it is necessary to say something about the structure of s.134AB. Where an impairment assessment falls short of 30% the worker (absent a certificate under s.134AB(16)(a)) must make an application to the Court for leave to bring a claim based upon the Court’s assessment of the impairment as stipulated in s.134AB(37) and (38). That process requires determination of the worker’s impairment by reference to separate concepts of pain and suffering and loss of earning capacity.
That form of distinction, using different terminology, is also applicable to awards of damages which require a Court, in effect, to give separate determinations or in jury trials, separate verdicts as to pain and suffering and pecuniary loss: s.134AB(22).
However no such distinction exists where a worker, such as Mr Tinworth, is able to bring a claim by virtue of the impairment assessment being 30% or more. S.134AB(15) simply deems the worker to have a serious injury – without any limitation or differentiation as to the type of damages he or she may claim. That section imposes no restriction on how the worker may frame his or her damages claim. It entitled Mr Tinworth to pursue a claim for both pain and suffering loss and pecuniary loss.
The terms of s.134AB(12) – which deal with offers and counter- offers - do not link a worker’s entitlement to make a claim for pecuniary loss, with any condition or stipulation as to the way in which the worker’s counter offer is put. Rather the sub-section requires as a condition precedent to the issue of proceedings (note the words used) a timetable to be adhered to and, that the worker:
(a) participate in a conference with the Authority[20] (s.134AB(12)(a));
(b) make a statutory counter offer if the Authority’s offer is not accepted: s. 134AB(12)(c).
Provided the worker complies with these conditions he or she is able to commence the action. There was no suggestion in this case that Mr Tinworth had not complied with the requirement to make a statutory offer or to participate in the conference as mandated by the section. It was not said the proceedings were irregularly instituted.[21] In other words Mr Tinworth attended a conference and made a counter-offer at appropriate times and in doing so complied with the terms of the sub-section.
[20]Victorian Workcover Authority
[21]See Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 [15] and [16].
As I have just said it was not suggested that Mr Tinworth was barred from commencing proceedings, which is the effect of non-compliance with the terms of s. 134AB(12). Rather, it is divined from the terms of that provision that there is an implied bar upon a claim for pecuniary loss if the worker’s counter-offer does not include an offer encompassing such a claim. There is no warrant, in my view, to read such an implication into this provision. If the legislature wished to prescribe the manner in which a counter offer was to be made and mandate a consequence of such significance preventing the worker bringing a substantive part of his or her claim, it would, I think, have said so in clear and unequivocal terms.
It is true, as counsel for W.V. Management said, that s 134AB sets out a code by which damages can be claimed in proceedings governed by the Act. However inherent in that code is the right of a worker to bring a claim for pecuniary loss damages. Once Mr Tinworth demonstrated a degree of impairment of 30% or more, serious injury was established and, with it, the putative right to bring a claim for damages, both for pain and suffering and pecuniary loss subject to the provisions of the Act. If the legislature wished to prevent the exercise of that right (or part of it), clear and unambiguous language was required. As I have said no such language is apparent – nothing is said, in terms, in either s. 134AB(12) or (28) in relation to the prohibition of the entitlement to bring a pecuniary loss claim by reason of the form of the counter-offer.
Whilst I accept the purpose of sub-s (12) is to endeavour to set up a regime promoting the resolution of the proceeding, I can see nothing in the wording of the sub-section specifying the terms or form of the counter offer, provided that offer is made. The form of the offer and counter offer is not inhibited by the Act. I repeat what I have said earlier that the bar is to the commencement of proceedings in the event of non-compliance – no more and no less.
Neither of the provisions of the Act relied upon by W.V. Management, (s 134AB(12) and s 134AB(28)), in terms, say anything about the entitlement to bring a claim for pecuniary loss. One is concerned with pre-issue negotiations, and the other with awards of costs. The two sections work together by mandating pre-issue negotiations and costs penalties consequent upon the result taking into account the offers and counter-offers made pursuant to sub-s (12). It may be, as counsel for Mr Tinworth suggested, that the counter offer, limited to pain and suffering, did not necessarily comply with sub-s (12)(c). If that be accepted, then sub-s (14) may deem the offer to be that of statutory maximum for damages prescribed by s.134AB(22). That, it seems to me, may be the real penalty imposed upon a worker whose counter-offer is non-compliant with sub-s (12)(c) - not the barring of a significant part of his or her claim but for the burden of a counter-offer of the maximum damages recoverable in a common law claim.
It follows that even if I was disposed to allow the amendment I am of the view that the contention is futile and the claim for pecuniary loss is not prohibited by reason of s.134AB(12).
Conclusion
The amendment sought to refine the allegations of contributory negligence will be permitted. The application is otherwise refused.
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