Plaintiff v Defendant

"2. The defendant employed the plaintiff as a chef or catering manager from 1991 to 2002.

3. The plaintiff in the course of her employment by the defendant from 20 October 1999 to 25 October 2001 was involved in the lifting of heavy and/or awkward weights and/or frequently bending and frequently manoeuvring of heavy and/or awkward weights and trolleys down steps, over uneven surfaces and/or over unduly long distances ('the work duties').

4. The work duties caused the plaintiff to suffer injury on or about 25 October 2001."

I should also refer to paragraph 5 of the amended statement of claim which I will deal with in a moment. Paragraph 5 provides:

"Further or alternatively, the plaintiff was required to continue working when the defendant knew or should have known that the plaintiff suffered injury and was aggravating same, and was then criticised for continuing to work and the plaintiff thereby suffered further spinal injury or aggravated the injury referred to in paragraph 3 hereof and/or suffered severe mental injury and distress."

1. By its further amended defence dated 20 September 2007, the defendant pleads, in paragraphs 3:

"3. It denies the allegations contained in paragraph 3 and says further that:

(a)(i) in respect of any cause of action relied upon by the defendant after 20 October 1999 the plaintiff has, by reason of the order of Judge Strong made 26 July 2006, been granted leave only in respect of an injury arising out of her employment with the defendant on or about 25 October 2001 and not in respect of any other injury;

(ii) further, having regard to the order of Judge Strong made 26 July 2006, the plaintiff is precluded from relying upon any cause of action other than that giving rise to the injury on or about 25 October 2001."

There is no subparagraph (b) in paragraph 3 of the defendant's further amended defence.

1. Paragraph 11 of the defendant's further amended defence provides:

"It states further that on 26 July 2006 the County Court granted the plaintiff leave pursuant to section 134AB of the Accident Compensation Act 1985(Vic) (The Act) to pursue a claim for common law damages in respect of injury sustained on 25 October 2001. The plaintiff's claim for serious injury under section 135AC of the Act and the plaintiff's application under section 134AB of the Act in respect of injury other than 25 October 2001 was dismissed. As such the plaintiff is precluded from relying on any cause of action other than injury sustained on 25 October 2001."

1. The parties have asked me to determine as a preliminary question the issue of whether the plaintiff can maintain the claim she currently pleads in the light of the order made by his Honour Judge Strong on 26 July 2006 and referred to in paragraphs 3 and 11 of the defendant's further amended defence. At the commencement of this hearing I was invited to determine these matters as a separate trial pursuant to rule 47.04. However, it seems to me that it is not convenient to attempt, on the run, to formulate the preliminary question which might then be dealt with according to rule 47.04. In the circumstances, I raised with senior counsel for the defendant whether I should not simply hear the argument and, depending upon my view of the argument, determine to either strike out paragraphs 3 and 11 of the defendant's defence or strike out particular paragraphs of the plaintiff's amended statement of claim with leave to re-plead. That is the course that the parties were content for me to adopt.
2. Coming back to the issues that are the subject of this application, issues of the kind raised by the defendant have been considered by this Court in Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340 by Osborn J and more recently by Cavanough J in O'Neill v TD Williamson Australia Pty Ltd [2008] VSC 398.[1] These issues have also been considered by the Court of Appeal in Brambles v Wail [2002] VSCA 150; [2002] 5 VR 169. However, the section in that judgment dealing with these issues has been omitted in the Victorian Reports and so it is necessary to look at the unreported version of Brambles v Wail [2002] VSCA 150, and in particular paragraphs 18 to 20 thereof.[2]
3. On 26 July 2006, Judge Strong ordered by consent as follows:

"1. Leave pursuant to s 134AB(38)(a)[3] to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of injury to the lumbar spine on or about 25 October 2001.

1. 2. Application under s 134AB(38)(c)[4] dismissed.
2. 3. Application under s 135A dismissed."

Other orders were made by his Honour but they are not relevant for present purposes.

1. The context in which his Honour made the orders of 26 July 2006 was upon the hearing of applications pursuant to ss 135A and 134AB of the Accident Compensation Act. In the course of those applications, the plaintiff swore an affidavit on 6 May 2005 headed "Affidavit by the worker in support of her applications pursuant to ss 135A and 134AB Accident Compensation Act 1985". Before coming to that affidavit, I should note the general endorsement on the originating motion by which that proceeding was brought contains within it, paragraph 1 in the following terms:

"The plaintiff has suffered injury arising out of or in the course of or due to the nature of her employment with the first defendant between approximately 1991 to mid 2002."

It is not necessary to set out the balance of the general endorsement.

1. I turn now to the plaintiff's affidavit. In paragraphs 1 and 2 the plaintiff deposed:

"1. I am making this affidavit in support of applications made by me for leave to bring common law proceedings pursuant the section 135A and/or section 134AB Accident Compensation Act 1985 in respect of injuries to my spine and stress or mental injuries arising out of or in the course of or due to the nature of my employment with the above named employer MLC.

2. These injuries arose out of or in the course of or due to the nature of my employment from approximately 1991 to mid 2002."

10. In paragraph 8 of that affidavit the plaintiff deposed to a number of back injuries over the years, four to six of which were said to be insufficiently serious to report them or make claims. She also deposed to numerous other incidents which "did not result in a claim as such". In paragraphs 9 and 10 she swore:

"9. The first episode of back injury I think was on or about 29 May 1992 when I shifted a heavy industrial Mixmaster to clean underneath it. Another incident involved lifting or manoeuvring a heavily laden trolley down some steps and twisting at the same time around a corner. Another incident was lifting heavy milk crates in the morning to load a trolley and then manoeuvring the trolley over uneven ground. There were also problems manoeuvring trolleys around awkward corners and up and down steps and there was always double-handling. Another problem was the small domestic dishwashers in the Kindel area. This area catered for large numbers and we often asked for an industrial dishwasher to allow easy loading and unloading and fast cleaning. With the domestic washers there was frequent bending and lifting and undue strain on the spine.

10. I had time off work from time to time because of back injuries but generally was okay and able to carry out my duties until October 2001. In or about that month I was at home gardening doing some weeding when I felt a stiffness down the right thigh. In the days following at work I was very busy. It was a hectic time. On or about 25 October 2001 I turned or twisted sharply at work and suddenly felt severe pain in the low back and a hot tearing feeling down the right leg. The pain was similar to the severe pain I had previously experienced with the Mixmaster incident and the heavy trolley and milk crates incidents. However, this incident in October 2001 had the burning leg pain in addition to the low back pain."

1. 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. Whether one looks solely at the order of Judge Strong, or at the order of Judge Strong in the context of the plaintiff's application and the affidavit that she swore in support thereof, it is clear that the plaintiff has leave to bring proceedings in respect of an injury suffered on or about October 2001 and in respect of work performed from 20 October 1999. Reference was made by senior counsel for the defendant in the course of argument to a ruling of his Honour Judge O'Neill's in a matter of Edwards which was delivered on 30 November 2007. First, that case is distinguishable on the grounds that the order that his Honour Judge O'Neill had to consider was an order, as he records it on page 58 of the transcript, "granting that leave only be given in respect of an incident occurring on 30 October 2001." There are no such words of limitation in the order of Judge Strong in the present case. Similarly, Judge O'Neill at page 65 of his ruling said at line 9:

"It is clear from his Honour's decision that the plaintiff was confined to a cause of action arising from a specific incident, the subject in that case of the incident detailed in the certificate."

1. Secondly, Mr Gorton relied upon the medical evidence that was available at the time that the serious injury application was compromised in the County Court. Specifically, he relied upon references in the medical reports to a particular incident occurring on or about 25 October 2001. However, the fact that there are references in the medical reports to a specific incident occurring in October 2001 does not gainsay the proposition that the leave actually granted by consent was in respect of an injury that occurred on or about 25 October 2001 but not limited in respect of any particular incident that might have caused that injury. There is no limitation in the order that confines the plaintiff to a cause of action based upon work performed on or about 25 October 2001. The plaintiff is at liberty to assert, consistent with Judge Strong's order, that work prior to that time but after 20 October 1999 was a cause of injury suffered on or about 25 October 2001. Whether the evidence will bear out this claim is not to the point for present purposes.
2. It follows that the terms of Judge Strong's orders, which I should note for completeness contain an error in paragraphs 3 and 5 of the typewritten authenticated version at page 37 of the defendant's court book where there is reference to "section 134(a)" which should be a reference to section 135A (see the handwritten minutes of consent orders), do not prevent the plaintiff from pursuing this claim as currently pleaded in paragraphs 3 and 4 of her amended statement of claim. It follows that the words in paragraph 3 of the defendant's further amended defence after the words, "It denies the allegations contained in paragraph 3" should be struck out, that is, commencing with the words, "and says further that (a)(i)" and following, are to be struck out. Similarly, for the same reasons as those given above, paragraph 11 of the defendant's further amended defence must be struck out. These pleas are either embarrassing or bad in law, having regard to the way the plaintiff has confined her claim in paragraphs 3 and 4 of her amended statement of claim.

14. Paragraph 5 of the plaintiff's amended statement of claim is somewhat more problematic. Insofar as the plaintiff seeks to plead and prove a cause of action leading to a further and different injury after October 2001, such a claim is precluded by the operation of Judge Strong's order. However, insofar as the plaintiff contends that any further injury was the natural and probable consequence of the injury in respect of which leave has been granted, then the same is permissible - adopting what was said by the High Court in Mahony v J Krustchich (Demolitions) Pty Ltd [1985] HCA 37; (1995) 156 CLR 522. Paragraph 5 in its current form is embarrassing. It can either be struck out or leave can be sought to amend it consistently with these reasons, that is, by limiting its operation in respect of any injury after October 2001, to the same being the natural or probable consequence of the injury referred to in paragraphs 3 and 4 of the plaintiff's amended statement of claim.

15. Accordingly, I will make the following orders:

1. Paragraph 3 of the defendant's further amended defence, commencing with the words "and says further that" to the end of the paragraph is struck out and paragraph 11 of the defendant's further amended defence is struck out.

2. Paragraph 5 of the plaintiff's amended statement of claim is struck out, but with a right to the plaintiff to re-plead.

16. I will hear the parties as to the orders that should be made concerning the further disposition of the trial in this proceeding and on the question of costs.

[1] See also Mugavin-Brown v St John of God Hospital [2001] VSC 166.

[2] I should say for the sake of completeness that Brambles v Wail was reversed in part by the High Court on points distinct and different from the points that are here under consideration: see Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424.

[3] As was pointed out by senior counsel for the plaintiff during the course of the argument, leave should properly have been expressed as having been granted pursuant to s 134AB(16) - but it is tolerably clear what counsel for the parties (not counsel currently appearing in the matter) meant when they signed the minutes of consent orders that formed the basis of the order of Judge Strong made on 26 July 2006.

[4] This paragraph suffers from the same defect as that identified in respect of paragraph 1 of these orders.