Tregilgas v Victorian WorkCover Authority (Ruling)

[2021] VCC 1780

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-02458

DANIEL ANDREW TREGILGAS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 27, 28, 31 August and 1, 2, 3, 6, 7, 8, 9 September, 4 and 5 October 2021 (e-hearing)
DATE OF RULING:	9 September 2021
CASE MAY BE CITED AS:	Tregilgas v Victorian WorkCover Authority (Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1780

RULING
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Subject:LIMITATION OF ACTIONS

Catchwords:              Application to strike out limitation of actions defence – gradual process injury over the course of employment – gradual process injury pleaded as a single cause of action – whether cause of action divisible

Legislation Cited:      Limitation of Actions Act 1958 (Vic)

Cases Cited:Bell Radiology (A Firm) v McGraw (Unreported, VSCA, 7 February 1996); Karatzidis v Victorian Railways Commissioners [1971] VR 360; Central Electricity Board v Halifax Corporation [1963] AC 785; Gas and Fuel Corporation of Victoria v Harris [1975] VR 619; Read v Brown (1888) 22 QBD 128; Alcan Gove Pty Ltd v Zabic [2015] 257 CLR 1

Ruling:  Paragraph 13 of the defendant’s Amended Defence is struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram QC with Dr J Plunkett	Slater & Gordon
For the Defendant	Mr J L Batten with Ms K Bradey	Wisewould Mahoney

HIS HONOUR:

Introduction

1Late in the afternoon on 24 August 2021, the plaintiff made an application preliminary to the commencement of the trial of the proceeding.  The application was to have part of the defence pleaded by the defendant struck out.

2Mr A Ingram QC appeared with Dr J Plunkett of counsel for the plaintiff.  Mr J Batten appeared with Ms K Bradey of counsel for the defendant.

The starting point

3By his current Statement of Claim, the plaintiff pleaded that in the course of his employment between August 2006 and February 2014, he undertook arduous physical work which resulted in him suffering a significant injury to his lower back.  I will set out the whole of the relevant pleading:

“In and between August 2006 and February 2014, the Plaintiff in the course of his employment with the employer at the said premises, was required to perform regular and awkward squatting, bending, reaching, lifting and twisting in order to carry out tyre fitting and wheel aligning and, further, lying on a trolley and raising his upper torso in order to use his tools to carry out wheel alignments in order to carry out his work duties.”[1]

[1]The quoted version of paragraph 6 has distilled out of it the word “Defendant” which has been excised, with the word “employer” substituted

4The plaintiff submitted that there is good and binding authority for the proposition that he is obliged to plead the factual basis of his cause of action in this way.  I was referred to a number of authorities, but I think it is sufficient to refer to the decision of the Court of Appeal in Bell Radiology (A Firm) v McGraw.[2]The essential facts were that the respondent/plaintiff was employed by the appellant/defendant from March 1988 to about the end of September 1988 as a diagnostic ultrasonographer.  She was required to attend a number of clinics.  Two of which had permanent ultrasound equipment installed, but others did not.  To undertake her work at the other clinics she needed to take portable equipment by motor vehicle.  It involved physically loading and unloading that portable equipment.  The portable equipment was heavy.  The tasks involved in manually handling that portable equipment were described as “lifting, straining and stretching” which produced serious injury to her back and spine.

[2]        (Unreported, Victorian Supreme Court of Appeal, decision handed down on 7 February 1996 (“Bell”). 

5The principal judgment, delivered by Tadgell JA, with whom Ormiston and Callaway, JJA agreed, quoted from the respondent/plaintiff’s statement of claim which pleaded in paragraph 3, that the plaintiff was involved in the work just described between March 1988 and approximately 30 September 1988 which resulted in her suffering injury.  Additionally, the statement of claim pleaded in paragraph 4, that the respondent/plaintiff suffered injury to her back in April 1988 in the course of performing her work, and on 20 September 1988, also in the course of performing her work.  I think the foregoing is a sufficient summary of the way in which the relevant statement of claim was pleaded setting up the factual basis for the respondent/plaintiff’s allegation that her injuries resulted from the negligence of the appellant/respondent.

6The  appellant/respondent submitted that the plaintiff had pleaded three separate causes of action, and therefore, the jury should have been asked to consider the April and September incidents separately and to answer a series of questions relating to each incident.  At trial, the trial judge rejected that submission and set the jury on the task of answering the four usual questions of negligence, damages, contributory negligence, and, lastly, any apportionment based on a finding of contributory negligence.

7His Honour then reviewed a significant number of decisions condescending to the issue of the pleading of two or more separate and distinct causes of action, and when a verdict will be usually necessary with respect to each such separate and distinct cause of action.  In doing so, his Honour observed that “technically” the relevant cause of action raised several causes of action, and then relevantly observed:

“… To regard the statement of claim as raising multiple or alternative causes of action is in my opinion, however, to misapprehend the nature of the proceeding.  Although each of paragraphs 3, 4 and 5 refers to physical injury to the respondent, I should not regard any of them as alleging a cause of action complete in itself.  An essential allegation – perhaps the cardinal allegation – made by the respondent is stated in paragraph 9 of the statement of claim, namely that ‘by reason of the matters aforesaid the plaintiff suffered injury, loss and damage’.  There follow particulars of personal injury, loss of earning capacity and special damage.  These items of injury, loss and damage were intended, as it seems to me, to be alleged as ingredients of a single cause of action upon which the respondent relied and without proof of at least some of which ingredients of the claim in tort would not be complete.  … .”[3]

[3]        Bell (ibid) at 10-11

8His Honour interrupted the foregoing observation by quoting directly from a decision of the Full Court of Karatzidis v Victorian Railways Commissioners[4] (with the principal judgment of the Court delivered by Winneke CJ, with whom Pape and Adam JJ agreed) in which the Full Court dealt with particulars of demand which pleaded two separate incidents in 1966 and 1967.  The Full Court observed that on previous occasions, the Full Court held that a pleading of that kind was apt to be confusing and misleading, and it then said “we think it should be dropped”.  Additionally, the Full Court observed that it is in the interests of conducting this class of litigation with propriety that cases of that kind should be pleaded simply and straightforwardly as cases of negligence.  His Honour applied Karatzidis, concluding that the draftsman of the relevant statement of claim should be taken to have complied with the direction laid down by the Full Court in Karatzidis, and that in substance, the respondent/plaintiff has relied on one cause of action calling for a single verdict.

[4] [1971] VR 360 (“Karatzidis”)

9Additionally, his Honour then considered that if he was wrong to regard the relevant statement of claim in that way, then it was apparent to him that the manner in which the case was fought at trial –

“… was such as to raise a single essential issue as to liability:  whether there was negligence on the part of the appellant.”[5]

[5]Bell (supra) at 12.  See also Central Electricity Board v Halifax Corporation [1963] AC 785 (“Central Electricity Board”)

10I have compared the current Statement of Claim with the relevant statement of claim before the Court of appeal in Bell, particularly in relation to the pleading that the injuries, the particulars of special damage and the particulars of loss of earnings and earning capacity are the damages which the plaintiff pleads were caused by the nature of the work he did in the course of his employment as pleaded in paragraph 6.  It occurs to me that the pleading is in conformity with the expectation that a case like this will be pleaded in that way in compliance with the direction in both Karatzidis and Bell. 

The accrual of the cause of action

11The plaintiff submitted that the cause of action does not accrue until it is complete.  He referred to Central Electricity Board[6] as authority for that proposition, and in particular, to the observation of Lord Guest in that regard:

“The date when a cause of action accrues may be said to be the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.  … .”[7]

[6]        Ibid

[7]        Ibid at 806

12The plaintiff also referred to Gas and Fuel Corporation of Victoria v Harris[8] in which the principle enunciated by Lord Guest in Central Electricity Board was applied in the joint judgment of Gillard, Menhennitt and Norris, JJ.  Their Honours referred to what they described as the “locus classicus” on the subject being a statement of Lord Esher MR in Read v Brown[9] in which his Lordship made the following observation on what constitutes the term “cause of action”:

“… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.  It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.  … .”[10]

[8] [1975] VR 619 (“Harris”)

[9] (1888) 22 QBD 128

[10]        Ibid at 131

13After reviewing a significant number of authorities relevant to what constitutes the term “cause of action”, the Full Court in Harris then observed:

“… It may therefore be accepted that a cause of action accrues when there have occurred all the facts which are material to be proved to entitle the plaintiff to succeed.  … .”[11]

[11]Harris (supra) at 623-624. The term “cause of action” is of course to be found relevantly in s5(1) of the Limitation of Actions Act 1958 (Vic) which provides for a relevant limitation period and the accrual of the cause of action

The relevant evidence

14The defendant submitted that it was not in a position to respond to the application on 24 August 2021, so I adjourned the application to the following morning.  In the meantime I read the authorities referred to by the plaintiff.  What occurred to me was that in each case, the appellate courts had before them the whole of the evidentiary record whereas all I had was the bare pleading without the benefit of the evidence condescending to a verification of what was pleaded in paragraph 6 of the current Statement of Claim.  It was for that reason that I delayed consideration of the application until sufficient evidence had been given for me to be satisfied that there was merit in what was pleaded in paragraph 6 without going so far as to determine whether what was pleaded was meritorious.

15At the time of delivery of this Ruling I had heard the full evidence of the plaintiff, his wife, Dr Paul Burke, general practitioner, Mr Tiew Han, neurosurgeon and Mr Bill Contoyannis, consulting mechanical engineer.  This body of evidence was well and truly sufficient for me to be in a position to consider the application.

16I do not propose to rehearse the plaintiff’s evidence, nor that of the other witnesses in any particular detail because I will undertake that exercise when I come to consider all of the issues raised by the parties in the composition of a final judgment.  I think it is sufficient to summarise the relevant evidence as follows:

·        the plaintiff commenced work with the defendant in August 2006 as a tyre fitter, and then as a wheel aligner.

·        he has suffered at least intermittent symptoms of pain for many years prior to commencing work with the defendant.

·        he alleges that the work he performed with the defendant resulted in him suffering injury which led to him undergoing surgery to his lower back on 16 December 2012 and then on 18 April 2014.

·        the plaintiff worked up until around the time when he first underwent surgery, after which he returned to work, and then worked until February 2014, when he ceased work altogether.  Toward the end of his working life with the  defendant he worked less than full time.

17The plaintiff relied upon the whole period pleaded in paragraph 6 of the current Statement of Claim as the period over which he suffered injury and over which the defendant was negligent in the causation of his injury.

18So, when did the plaintiff’s cause of action become complete?  On the basis of the pleading, and verified by the evidence, it did not become complete until February 2014.  It was at that point that the plaintiff knew of all of the facts necessary for him to prove to support his right to a judgment.  Putting it in a different way, he knew of the period over which he would allege the defendant was negligent, and having ceased work in February 2014, the measurement of his damages both for nonpecuniary and pecuniary loss. 

19It occurs to me that the combination of the direction that the plaintiff’s cause of action be pleaded as it has been, together with what I have just described as the completion of his cause of action, must mean that the time runs relevant to the Limitation of Actions Act 1958 from February 2014.

The limitation defence

20The defendant filed an Amended Defence, and by paragraph 13, pleaded its limitation defence as follows:

“FURTHER, it says that insofar as the Plaintiff’s cause of action arose on or before 29 January 2012, the Plaintiff is barred by the provisions of the Limitations (sic) of Actions Act 1958 from relying on that cause of action.”

21The defendant submitted, in effect, that the plaintiff knew of his cause of action on or before 29 January 2012; however, that submission runs counter to the authorities I have referred to relevant to the direction as to how a cause of action is to be pleaded in a case like this and when the cause of action is complete.  The defendant referred me to Alcan Gove Pty Ltd v Zabic[12] as authority for the proposition that because the plaintiff knew of the injury he had suffered by 29 January 2012, the time commenced running against him as and from that date.  I am not persuaded that it is of much assistance because it does not directly address the direction as to how a cause of action like this is to be pleaded, and the issue of when the cause of action is complete.

[12] [2015] 257 CLR 1

22Furthermore, the plaintiff submitted that the Defence wrongly seeks to split the cause of action contrary to and against the grain of the authorities I have referred to.  I think that is so.

Conclusion

23For the reasons set out above, I conclude that the plaintiff has pleaded his cause of action in accordance with the direction referred to in the authorities I have referred to, and then, on the basis of other authorities I have referred to, that his cause of action accrued in February 2014.  It is for these reasons that I rule that paragraph 13 of the Amended Defence must be struck out.

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