Plaintiff v Defendant

2 He claims damages for personal injury allegedly suffered whilst driving and operating RFW haulers, during the period of his employment from December 1992 to 12 November 1997.

3 The injury alleged is constituted by injury to the lower back with consequential symptoms and a reactive depression.

4 Paragraph 9 of the amended statement of claim alleges that on 15 March 2001, his Honour Judge Duggan gave leave to the plaintiff to bring proceedings in respect of injuries suffered by him in the course of his employment from 1 December 1992 to 12 November 1997. Such leave was founded on the conclusion that the plaintiff had suffered a serious injury as defined by s.135A(19) of the Accident Compensation Act 1985 ("the Act").

5 By its defence to this pleading the defendant asserts that leave was granted to the plaintiff to bring proceedings only in respect of injuries allegedly sustained when he was driving a RFW hauler on 21 September 1995.

6 The above pleadings were exchanged following the decision of the Court of Appeal to set aside a verdict given by a jury for the defendant at a previous trial of the action.

7 The plaintiff's claim has been repleaded in response to some criticisms of it made in the course of the Court of Appeal's judgments.

8 The point now in issue was not raised previously in the proceeding.

9 The proceeding is currently fixed for trial before a jury next Monday at Warrnambool. With the consent of the parties I have ordered that the allegation raised by paragraph 9 of the defence be determined by me as a preliminary question.

10 During the course of argument it became clear that the defendant's true position is that leave to bring the proceedings was either limited to injury suffered on 21 September 1995 or alternatively during 1995.

11 In my view the defence should be amended pursuant to rule 36.01 to expressly articulate this alternative, in order to dispose of the real issues between the parties and I will deal with the matter on the basis that that amendment (which I foreshadowed during the course of argument) is made.

12 By reason of rule 60A.02 of the relevant Rules of Court, his Honour Judge Duggan's order has not been authenticated. On the face of it, this precludes reference to a potentially significant piece of evidence. Nevertheless, both parties were content for me to determine the question of the ambit of the leave granted, by reference firstly, to his Honour's reasons and secondly, background documentation relating to the application before him.

13 In Brambles Ltd v Wail[1] the Court of Appeal did not treat the terms of the order made by the judge who heard a comparable leave application as determinative of the substance of the leave. The Court[2] stated in part:

In our view, there is no merit whatever in this ground of appeal. Indeed it was not surprising to hear senior counsel for the appellant inform the Court that it was not his "killer point". In the circumstances of this case, his Honour was correct to have regard to all the documents before him, including the transcript of the leave application, for the purposes of determining that the date, which was referred to in the order granting leave, was not material either to that judge's order, or to the application for leave to amend.

14 The common approach of the parties before me thus accords with the approach accepted by the Court of Appeal with respect to reference to documents evidencing the factual matrix in which leave was granted.

15 The Act imposes different constraints on common law claims of the type here in issue, depending upon the date at which the cause of action arose:

Actions for damages for injuries arising out of or in the course of employment at particular times are subject to different rules. Actions for damages for injuries arising from employment before the appointed day are governed by common law rules. Actions for damages for injuries arising from employment between the appointed day and 12 November 1997 are governed by the provisions of s.135A. Actions for damages for injuries arising from employment between 12 November 1997 and 20 October 1999 are regulated by the provisions of s.134A. Actions for damages for injuries arising from employment after 20 October 1999 must comply with the provisions of s.134AB, which sets out an elaborate system of medical assessments and exchange of medical reports and offers of settlement. In my opinion, an applicant for leave pursuant to s.135A is required to establish that he sustained an injury to which the provisions of the section, not those of another regime, apply.[3]

16 This is a s.135A case. Section 135A relevantly provides as follows:

(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997 -

(a) shall not, in proceedings in respect of the injury, recover any damages for non pecuniary loss except -

(i) in accordance with the Transport Accident Act 1986 and subsections (11)(b), (12) and (18)(b) of this section; or

(ii) in proceedings of a kind referred to in section 135(1)(c) and in accordance with subsections (11)(b), (12) and (18)(b) of this section; or

(iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and

(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except -

(i) in proceedings of a kind referred to in a paragraph of section 135(1) and in accordance with subsections (11)(a), (12) and (18)(a) of this section; or

(ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section.

17 Section 135A(2) provides that a worker may recover damages in respect of an injury arising out of or in the course of or due to the nature of employment -

(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or

(b) if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date.

18 Sub-section (2A) and following in turn provide for the ascertainment of the character of an injury, i.e. whether it constitutes a serious injury.

19 Sub-sections (2B) and (2BA) provide for an application for determination in an approved form accompanied by relevant medial reports and affidavit material.

20 Sub-section (2D) provides that the authority or self-insurer must respond to the application within 120 days and either advise the worker in writing of its determination or of a refusal to make a determination (in the circumstances specified in (2C)).

21 Sub-section (2DA) requires such advice to be accompanied by relevant medical reports and affidavit material.

22 Sub-section (2DB) provides that if the authority or self-insurer fails to advise the worker in writing within 120 days of receiving the application, either of the determination or of the refusal to make a determination the worker is deemed to have suffered a serious injury.

23 Sub-section (3) provides that if the authority or self-insurer determines that the degree of impairment of the worker as the result of the injury would, if assessed in accordance with s.91 be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of the section.

(4) If the Authority or self-insurer has determined in accordance with subsection (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(i) is satisfied that the injury is a serious injury; and

(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or

(b) a court, on the application of the worker made within 30 days after the determination was made or, with the consent of the Authority under subsection (6A), after that period, gives leave to bring the proceedings .

25 Sub-section (6) provides that a court must not give leave under sub-s.4(b) unless it is satisfied that the injury is a serious injury.

26 A serious injury is defined by sub-s. 19 to mean:

(a) serious long-term impairment or loss of a body function; or

(c) severe long-term mental or severe long term behavioural disturbance or disorder; or

27 His Honour Judge Duggan's determination was made pursuant to s.135A(4)(b).

28 In Wilson[4] Buchanan JA stated at [17]:

It was common ground between the parties that an applicant will be entitled to a grant of leave pursuant to s.135A(4)(b) if the applicant establishes that he or she sustained an injury which arose out of or in the course of or due to the nature of his or her employment, that the injury occurred after the appointed day and did not arise solely from employment before the appointed day, that the employment which gave rise to the injury or in the course of which or due to the nature of which the injury occurred took place before 12 November 1997, and that the injury satisfies the definition of "serious injury" in sub-s.(19). The last element, the seriousness of the injury, is to be determined as at the date upon which the application for leave is determined. [Footnote omitted]

It seems to me that the primary task of an applicant for leave under sub-s.(4)(b) is to establish, on the balance of probabilities, that the workplace injury is a "serious injury" as defined. This involves demonstrating two things. One, that the injury is one to which the Act applies and two, that it is a "serious injury". There would be no point to proceeding to determine the second matter if the injury does not fall within the Act. Hence, one of the matters that such an applicant must establish is that the employment related injury arose within the period contemplated by ss.4(1) and 135A(1) of the Act, in this case, between the appointed day and 12 November 1997. As Buchanan JA said, it is the limitations as to time contained in those provisions that form the cornerstone of the regime that regulates the entitlement of the injured worker to bring an action for damages in respect of such an injury. Consequently, that the injury arose during the prescribed period has to be made out at the stage when leave is sought under sub-s.(4)(b).

30 In Brambles v Wail[5] the Court stated:

... As we have previously noted, persons who claim damages in this State for injuries "arising out of, or in the course of or due to the nature of [their] employment" can only seek to pursue those claims in accordance with the provisions of s.135A. So far as relevant to this case, such claims can only be brought if their employment was a significant contributing factor to the suffering of the injury and the injury is a "serious injury" and it arose on or after 1 December 1992 (s.135A(2)). The significance of the date is that it was the date upon which the Accident Compensation (Workcover) Act 1992 came into operation. Relevantly, for the purposes of this claim "serious injury" is defined in sub-s.(19) as "serious long-term impairment or loss of a body function"[6]. Again relevantly for present purposes sub-s. (4)(b) prescribes that no such claim can be brought unless "a court, on the application of a worker ... gives leave to bring the proceedings". Such leave can only be given if "it is satisfied that the injury is a serious injury" (sub-s.(6)). These provisions are, thus, "gateway provisions" which must be satisfied before the claim for damages can be brought. The provisions have provided fertile fodder for the profession notwithstanding the lament of the courts that it has given rise to a "foolish, wasteful and inconvenient system" which duplicates the expense in establishing the nature and degree of the potential plaintiff's injury[7]. It can only be assumed, from the fact that the system remains, that it is still regarded, on balance, as a cost-saving system. By its very nature, a preliminary finding by a judge that the applicant for leave has sustained a "serious injury" arising out of his employment does not finally determine the rights of the parties. It is merely a preliminary step along the way to establishing those rights. It does not prevent the defendant, at the trial, from challenging the seriousness of the injury, or from seeking to show that it did not arise out of the plaintiff's employment, or that such employment did not significantly contribute to it. 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).

31 In Papercorp Pty Ltd v Nicolaou[8] Ashley JA emphasised that the application of the statute was underpinned by the conceptual framework provided by the components of a common law action for damages for personal injuries:

In my opinion, finding the answer to the instant problem of statutory construction is assisted by focusing on what is comprehended by a common law action for damages for personal injuries. Subject to various inhibitions, that is what s.135A is concerned with. That is, s.135A is concerned with the circumstances in which a worker[9] is to be permitted to bring a proceeding for damages in respect of injury sustained in compensable circumstances; and with what damages the worker may recover in such a proceeding.

It is fundamental that at common law a person may sue once only for injuries sustained by the negligent conduct of another.[10] The person sues, and can only sue, in respect of injuries which have then manifested themselves, and injuries which it is known or reasonably conjectured may ensue, and in respect of the known or potential effect - whether in terms of pain and suffering or pecuniary disadvantage - of any such injuries. If, after a proceeding is ended, some different injury unexpectedly develops, or some physical or financial consequence of known injury unexpectedly ensues, it is too bad. The Limitation of Actions Act 1958[11] and the obligation of a plaintiff to prosecute a proceeding, rather than let it lie, in different ways deprive a plaintiff of the luxury of waiting to see whether, with the passage of time, new injuries or new and presently unexpected consequences of known injury will develop.

When leave is given to bring a proceeding under s.135A, it is in respect of "the injury" which was caused in compensable circumstances by the negligent conduct of the employer. True it is that a proceeding may only be brought if the injury is in its consequences a serious injury, but whatever the mechanism by which it is recognized as being a serious injury - whether it be a determination under sub-s.(3), the deeming effect of sub-s.(2DB), a consent issued under sub-s.(4)(a), or a grant of leave under sub-s.(4)(b) - the consequences of compensable injury in respect of which damages are recoverable are not delimited. So, for example, injury may be serious, when the relevant determination[12] is made, by reason of its pain and suffering impact. But that will not preclude the worker, at trial, seeking and recovering damages for later-ensuing loss of earnings or loss of earning capacity; or, indeed, for loss of earnings or loss of earning capacity which was present at time of determination of an application under sub-s.(2B) or at time of resolution of an application under sub-s.(4)(b), but which was not then such as constituted it a serious injury consequence.[13] So, once a proceeding is authorized, it is essentially a common law action of the ordinary kind, in which the plaintiff may seek and recover damages for all the consequences of compensable injury. That is so despite, for example, inhibitions upon the quantum of damages recoverable. It is a common law action upon a cause of action which is complete when once the negligent conduct is a cause of harm which is more than negligible;[14] but it is not limited to recovery of damages for the harm which meets the "more than negligible" test sufficient to make the cause of action complete. It is equally a common law action to which the Limitation of Actions Act applies.

It is certain, given the context which I have described, that there can only ever be one determination favourable to a worker under s.135A in respect of compensable injury attributable to an employer's particular negligent conduct. Once such a determination is made, a worker may then sue for all the consequences of that injury, regardless whether a particular consequence had ensued at the time of the determination.

32 By his s.135A application the plaintiff first stated under the heading "How exactly was the injury sustained:"[15]

On or about 21 September 1995 I was driving a hauler when I began to experience pain in my lower back extending into my right leg. At the time the haulers had inadequate height adjustment controls for people of my stature and the padding on the seat of this particular hauler was worn out and this required extra effort to hold down the brake pedal with additional twisting and rotating in my seat. I estimate that I would spend about half my shift, that is, about six hours, every second shift driving a hauler with only limited breaks. I could never seem to get comfortable when I was driving the haulers and the seating was hard and would cause pressure on my bottom. I was also required to drive bobcats and this was another machine where I found it difficult to fit into and rough to operate. As well as driving the fork trucks, haulers and bobcats I was also required to do other heavy duties which I believe also put stress and strain on my lower back and predisposed me to injury including doing a lot of crowbar, sledgehammer and jackhammer work.

33 After referring to other incidents occurring on 22 January 1995 (when the plaintiff unblocked a spillage conveyer) and 2 April 1995 (when the plaintiff was lifting a bucket of cast scrap material) the plaintiff further stated:

I believe however that the incident that really was the final straw was that of 21 September 1995 from driving the haulers.

The plaintiff went on in the application to particularise the injury to the lower back with consequential symptoms and depression.

34 When the matter came before Judge Duggan the application was opened by senior counsel on the basis that the key occurrences were in 1995:

In 1995, Your Honour, he was in heavy work as the affidavit has indicated to you, sir. In 1995 he commenced to have difficulties with respect to the low back, and much more severe problems down into the right leg.

35 Attention was then directed to the medical evidence for the period of 1995 to 1996.

36 The plaintiff was cross-examined with respect to the incidents identified in his application and evidenced in his affidavit.

37 In final address senior counsel for the defendant made clear that he understood the case was put on the basis of continuing injury over 1995 and not simply as occurring on a particular day.

38 In turn, the final address of senior counsel for the plaintiff expressly referred to "injury in 95" on several occasions and concluded:

... Your Honour, looking at all the material it drives the court in our submission to conclude that he is a genuine man who has a low back injury, injured in the course of work in 1995 that has led him to a situation where he will never again be a heavy manual labourer.

39 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.

This is an application under s.135A for a declaration that injury claimed to have been sustained by the plaintiff in the course of his employment between 1 December 1992, and as I understand it, the end of 1995, should be defined as a serious injury within the meaning of that legislation.

41 His Honour thus proceeded on the basis the injury was alleged within the relevant statutory period but not after 1995.

42 After giving some background history he noted that in 1990/1991 the plaintiff developed some right leg pain, but there was no associated lumbar pain and no time off work.

43 His Honour then dealt with the matrix of fact at the heart of the plaintiff's claim:

He remained at work and in the beginning of 1995, as I understand them, his duties involved driving in what is called the rodding room. He had the obligation to drive various pieces of equipment, but the principal one blamed for the subsequent development of the condition upon which this application is based, is a piece of equipment called a hauler. Photographs of that vehicle have been tendered.

The plaintiff's evidence is that for a man of his height, driving this particular vehicle was difficult. As I understand it, the complaint is that, particularly with the posture that he was required to adopt, jarring and vibrating of the spine, particularly over uneven surfaces, created difficulties for him.

The sequence of events is set out in his affidavit. In paragraph 5 of his affidavit, he said that in the rodding room, he was required to drive forklifts and the hauler vehicle to which I have referred.

He refers to his height and problems that exist in relation to the jarring and vibrating sensation on his lower back particularly when driving over the uneven floor surfaces. Over the years, modifications were made to the seats of a number of these vehicles, but not all.

He said that problems developed over 1995, but in particular, on 21 September 1995, he was driving a hauler, when he began to experience pain in his lower back which extended into his right leg. However, there had been experiences earlier in the year. On 22 January 1995, he was required to work in what is referred to as the load/unload station, and again, felt development of severe pain down his right leg, which he attributed to the unlocking of the spillage conveyer.

On 2 April 1995, he said he felt pain in his lower back when he had to clean out the blast chamber and lift a bucket of cast scrap metal. But it was his view that the incident that occurred on 21 September 1995, was the ultimately disabling incident.

44 It is clear that the evidence summarised by his Honour was directed to events in 1995 and the "subsequent development" of a condition after the commencement of that year.

45 After describing the plaintiff's subsequent medical progress and the opinion evidence as to the nature of the plaintiff's injury, his Honour ultimately accepted the opinion of Mr Schofield, buttressed by that of Dr Prentice and Mr Brownbill that a process of exclusion of other possible causes of the plaintiff's symptoms suggested the plaintiff had "a traumatic pyriformis syndrome which has been caused by the repetitive trauma placed on his right buttock, causing irritation and probably compression of the sciatic nerve as it traverses the pyriformis muscle." In the course of considering the evidence as to injury his Honour specifically rejected the submission made on behalf of the defendant that he should confine his assessment to the disability which flowed from the incident in September 1995 alone. His Honour took the view that the injury was a progressive injury.

46 In turn, his Honour concluded that although the plaintiff attempted to work beyond 1995, this did not so much aggravate the plaintiff's condition as demonstrate the extent of it.

47 In conclusion his Honour stated as to the fact of injury:

Unquestionably (the plaintiff) developed a significant problem in 1995. He did not give up at that stage. He continued to work until the middle of 1998, despite ongoing physical problems, and an associated significant psychiatric condition. He struggled with that activity for a long period of time. He was taking heavy doses of painkillers.

In my opinion by the middle of 1998 he was virtually forced to stop work.

48 He went on to hold that the condition from which the plaintiff suffered was on the evidence probably that diagnosed by Mr Schofield and that such condition constituted a serious injury.

49 In my view, when his Honour's reasons are read carefully and in the context of the application before him, it is apparent the injury for which leave to proceed was granted was injury to the lower back suffered during ongoing employment in 1995.

50 In my view, therefore, the defence as amended by me, should be upheld in part and the plaintiff's statement of claim amended to refer to injury suffered in this period rather than the period of 1 December 1992 to 12 November 1997 as currently pleaded. The words "in 1995" should be inserted at the commencement of paragraph 4 of the statement of claim.

[1] [2002] VSCA 150.

[3] Wilson v State of Victoria [2004] VSCA 55; (2004) 10 VR 361 at 365 [16] per Buchanan JA cited with approval in Barwon Spinners v Podolak [2005] VSCA 33; (2005) 14 VR 622 at 630.

[6] The meaning of that definition was explained in Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 134-8 per Crockett and Southwell JJ.

[7] cf. Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 at 437 per Brooking, J.

[8] [2006] VSCA 143.

[10] The availability of a separate action for property loss caused by such conduct, whatever its juridical basis - see Linsley v Petrie [1998] 1 VR 427 - is presently irrelevant.

[11] Whatever be the true meaning of s.5(1A), and notwithstanding s.23A.

[12] I do not use that word as a term of art.

[13] It may be that the same should be said if a worker suffers a multiplicity of injuries in a compensable incident, and one particular injury meets the "serious injury" threshold. That is, it may be that "the injury", for the purposes of permitted common law proceedings, is more than just the "serious injury" which opens the gateway. That, as I understand it, has been the convention upon which litigants have hitherto proceeded. I say nothing to suggest such approach is wrong; but the question, if there is one, need not be decided in this case.

[14] Cartledge v E Jopling & Sons Ltd [1963] AC 758.

[15] Despite this form of application, it is of course the injury not the incident which is ultimately the subject of leave.