Plaintiff v Defendant

Supreme Court of Victoria|2010-06-18|Before: J FORREST J

ACCIDENT COMPENSATION - Injury arising out of or in the course of employment - Circumstances giving rise to serious injury actionable - Application to amend Statement of Claim - Opposed as introducing a new or separate claim - Ambit of serious injury certificate granted pursuant to Section 134(AB)(16)(a) of Accident Compensation Act - Arguable that amendment would not introduce a new or separate cause of action - Serious injury - Whether trial judge at trial permitted to amend pleadings to allege cause of action arising on different date.

1 Mr Kruisselbrink sues his employer, Nationwide Maintenance Services Pty Ltd for injuries he allegedly sustained in the course of his employment between 2000 and 2005. Prior to commencement of the jury trial the parties requested that I determine the question of amendments to both the statement of claim and the defence.

2 The nub of the argument for each side centred upon what constraints (if any) are imposed upon Mr Kruisselbrink's common law claim by the terms of a serious injury certificate ("the certificate") issued by the delegate of the Victorian WorkCover Authority ("the Authority") pursuant to s 134AB(16)(a) of the Accident Compensation Act ("the Act").

3 The resolution of the argument is of real significance. If Nationwide's arguments opposing Mr Kruisselbrink's amendment succeeds then his claim is limited to one incident at work in May 2005, whereas if he succeeds in securing the amendments he can assert that his employment as a continuum, including the two separate incidents, form the basis for his common law claim.

4 The following matters provide some guide as to the background of this application and, as I apprehend the material filed by each side are not in contest.

5 In 2000 Mr Kruisselbrink commenced employment with Nationwide as a cleaner, initially working at a church and a nursing home.

6 On 18 October 2004 Mr Kruisselbrink attended his General Practitioner complaining of severe pain and numbness in both hands and pain over the lower neck area with a possible diagnosis of cervical disc prolapse.[1]

7 On 5 May and 6 May 2005 Mr Kruisselbrink did not attend work.[2]

8 On 6 May 2005 Mr Kruisselbrink again attended his General Practitioner complaining of right shoulder pain and pins and needles and numbness in his right hand.[3]

9 On 9 May 2005 Mr Kruisselbrink filed a claim for workers' compensation alleging an injury at work on 4 May 2005.[4]

10 On 18 July 2005 an MRI of the cervical spine revealed a right paracentral protrusion at C6/7, producing right C7 compression radiculopathy and mild bilateral C4/5 foraminal stenosis.[5]

11 On 17 August 2005 Mr Kruisselbrink underwent a right ulnar neurolysis and medial picondylectomy and right carpal tunnel release.

12 On 2 November 2005 Mr Kruisselbrink underwent an anterior cervical discectomy and fusion at C6/7.

13 On 23 May 2006 Mr Kruisselbrink underwent a right shoulder arthroscopy with an accompanying mini-opening sub-acromial decompression.

14 On 25 January 2007 Mr Kruisselbrink underwent a left ulnar neurolysis and medial picondylectomy and left carpal tunnel release.

15 On 9 April 2008 Mr Kruisselbrink lodged his application pursuant to s 134AB of the Act ("the s 134AB application").

Mr Kruisselbrink's Statement of Claim was issued on 8 June 2009; it, inter alia, alleged injury as a result of the repeated use and manoeuvring of heavy cleaning equipment.[6] The particulars of injuries are a replica of the injuries described in the section 134AB application (and also included in his draft statement of claim accompanying that application):[7]

(a) Pain, tenderness and limitation of movement affecting the cervical spine and upper limbs;

(b) Musculo-ligamentous injury to the cervical spine and upper limbs;

(g) Injury to the right shoulder necessitating surgery;

(h) Development of bilateral carpal tunnel syndrome necessitating surgery;

(l) Psychological injury including anxiety and depression.

16 In his original Statement of Claim Mr Kruisselbrink identified three discrete causes of action: negligence, breach of statutory duty and breach of contract of employment. He also asserted that he was entitled to commence the proceedings pursuant to the provisions of s 134AB of the Act as he had suffered a serious injury.

17 Nationwide's defence contains only denials without any further detail. There is also an allegation of contributory negligence accompanied by a totally unsatisfactory set of particulars.

18 The statement of claim was patently deficient in that it failed to identify any period of time over which the work was carried out by Mr Kruisselbrink; the relevant dates upon which the particular acts or omissions giving rise to the allegations of negligence or statutory/contractual breach were, deliberately, it would seem, omitted. On any view such a pleading should be struck out as embarrassing.[8]

19 On the day of the trial Mr Harrison SC, who appeared with Mr Walsh for Mr Kruisselbrink, sought to file an Amended Statement of Claim. This was opposed by Nationwide. The draft contains three amendments:

(a) to plead specific periods of employment in relation to the allegations contained in paragraphs 3(a) and (b) of the original statement of claim;

(b) to plead as particulars of negligence (rather than as distinct allegations of statutory breach) the failure of Nationwide to comply with various regulations made under the Occupational Health and Safety Act;

(c) to plead in more detail the alleged implied terms of the contract of employment and the breach of that contract of employment.

3. The plaintiff sustained injury in the course of his employment with the defendant between 2001 and May 2005 when he was required to repeatedly use and manoeuvre heavy cleaning equipment including, but not limited to:

(a) from mid August 2004 until May 2005 a heavy steam cleaning machine which the plaintiff had to use by walking backwards causing the machine to catch on furniture and placing undue strain upon the plaintiff's upper limbs and cervical spine in such circumstances;

(b) bet_wee_n 2000 and late 2004 a heavy floor polishing machine which the plaintiff had to regularly carry up two flights of stairs - thereby causing injury to the plaintiff (which injuries are here and after referred to as 'the injuries').[9]

(amendments italicised)

20 The faults in the pleading process were not confined, however to one party. On 30 April 2010, Nationwide filed an amended defence purporting to do so pursuant to Rule 36.06. The filing of the defence was misconceived as at that time there was no amended pleading as the Rule requires. No point on this issue was taken by Mr Kruisselbrink and it was only during the course of the hearing of the application that the defect emerged. Leave to amend is required by Nationwide pursuant to Rule 36.03.

21 The amendment to the defence sought by adding paragraph 10 reads:

The defendant says that this honourable Court has no jurisdiction to hear the plaintiff's allegations as listed in paragraph 3(b) of his statement of claim as this cause of action did not form part of his original application for serious injury pursuant to s 134AB of the Accident Compensation Act 1985.

22 As is apparent, neither party sought leave, at an interlocutory stage, to amend their pleadings. However, each now wish these points to be resolved prior to the empanelment of the jury. Whilst it would have been preferable for these issues to have been determined at an earlier point of time, it was desirable and in the interests of justice to deal with the arguments of each of the parties by hearing the application instanter. This is consistent with the approach taken by Beach J in Harvey v Methodist Ladies College.[10]

23 Mr Curtain QC, who appeared with Ms Knoester for Nationwide, contended that the application to amend the statement of claim should be refused as such amendment was inconsistent with the terms of the certificate. He argued that if any amendment was to be permitted it should be confined to the pleading of a specific incident on 4 May 2005. Otherwise it was implicit in his argument, (and consistent with my own observations), that paragraph 3 should be struck out. In ascertaining the real meaning of the certificate he pointed to a number of aspects of the background material filed by the parties and available to the Authority's delegate at the time of its decision.

24 Mr Harrison also relied upon the background material to support his contention that the amendments should be permitted, arguing that it was clear that the certificate was intended to enable Mr Kruisselbrink to bring proceedings in respect of the injuries described in his serious injury application and which had arisen as a result of his employment overall. By providing the relevant dates within the amended pleading the risk of the pleading being struck out was obviated.

25 Mr Curtain argued that the proposed amendment to Nationwide's defence should be permitted as it raises an issue of jurisdiction which also turns upon the effect of the certificate and Mr Kruisselbrink's entitlement to bring common law proceedings. Implicit in the argument of both parties was that I should, if persuaded on the material that this part of the defence was made out, order that paragraph 3(b) of the Statement of Claim be struck out.

26 The application by Mr Kruisselbrink to amend the statement of claim to plead the additional particulars of negligence and to expand upon the allegations of the contractual breach should be allowed. There was no serious objection to such leave being given. However, the amendments to paragraph 3 of the statement of claim and the addition of paragraph 10 of the defence require analysis.

27 I have set out the provisions of the scheme in some detail. The argument on behalf of Nationwide as to the proper construction of the terms of the certificate relies, to some extent, upon provisions other than those which, on their face, provide the entitlement for a worker to bring his or her common law claim.

28 Section 134AB(1) reads as follows:

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 on or after 20 October 1999-

(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 (25)(b), (26) and (36)(b) of this section; or

(ii) in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(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 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or

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

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 if the injury is a serious injury and arose on or after 20 October 1999.

A worker may not bring proceedings in accordance with this section unless-

(a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under subsection (4); or

(b) subject to any directions issued under section 134AF, the worker elects to make an application under subsection (4) on the ground that the worker has a serious injury within the meaning of this section.

In relation to the issue of a certificate, s 134AB(16) reads:

If the assessment under s 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless - (a) the Authority... - (i) is satisfied the injury is a serious injury and (ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings.

29 These parts of s 134AB that I have set out above, are the key to a worker's entitlement to prosecute a common law claim. It is these provisions, as I will try to explain, which provide a court with the capacity to entertain a worker's common law proceeding.

30 A worker can demonstrate serious injury by three different routes. He or she may have received an impairment assessment under s 104B of 30% of more which results in the injury being deemed to be serious: s 134AB(15). Alternatively, if the s 104B assessment is less than 30%, the Authority may grant a Serious Injury Certificate as set out in s 134AB(16)(a). Finally, a court may, on the application of a worker, give leave to bring proceedings provided it is satisfied that the injury is a serious injury: s 134AB(16)(b) and (19).

31 In this case the Authority issued a certificate under s 134AB(16)(a). In determining whether Mr Kruisselbrink's injury was serious, the Authority was required to consider the criteria laid out in s 134AB(37) and (38) and if satisfied, then issue the certificate.

32 The Act also sets out a series of additional steps which must be complied with before a worker may bring a claim for damages. For instance, s 134AB(5) provides that a worker must, in making an application for a serious injury, file an application in an approved form accompanied by medical reports and affidavits "attesting to such other material" which the worker intends to rely upon or adduce in evidence in a proceeding involving a serious injury. A Ministerial direction requires the provision of a draft statement of claim.

33 In addition, s 134(7) requires the Authority, within 120 days, to advise the worker whether his or her injury is deemed to be serious (i.e. as provided by sub-s 15) or whether it will issue a certificate under sub-section 16(a). That is what happened in Mr Kruisselbrink's case.

34 By s 134AB(8) the Authority is obliged, in certain circumstances, to provide all medical reports and affidavits attesting to such other material upon which it proposes to rely.

35 Once a certificate has been granted, an offer and counter-offer process as set out in s 134AB(12)(13) and (14) is set in motion. By sub-section (12) a worker cannot bring proceedings unless this process is complied with; in addition the amounts of the offer and counter-offer form the basis for prescriptive orders as to costs as set out in sub-s 28.

36 In compliance with s 134AB(5), Mr Kruisselbrink completed an application in the prescribed form, swore an affidavit with accompanying exhibits and provided a draft statement of claim. A number of medical reports were also provided.

37 Nationwide's material included an affidavit sworn by Mr Menz on behalf of the company with exhibits. It also provided a number of medical reports.[11]

38 The certificate is dated 9 February 2008[12] and reads as follows:

For the purposes of s 134AB of the Accident Compensation Act 1985 Gallagher Bassett Services Compensation Victoria Pty Ltd being a person appointed as an authorised agent to the authority pursuant to s 23 of the Act, certifies in respect of Danny Kruisselbrink that:-

(a) Gallagher Bassett Services Compensation Victoria Pty Ltd is satisfied that the injuries sustained on 5 May 2005 is a serious injury within the meaning of s 134AB(38)(b)(i) and (ii) of the Act; and

(b) Subject to compliance of the s 134AB(12) of the Act, consent is given pursuant to s 134AB(16)(a) of the Act for Danny Kruisselbrink to bring proceedings for recovery of pain and suffering and pecuniary loss damages as a result of injuries sustained on 5 May 2005. (emphasis added)

39 The terms of the certificate are patently wrong. It could not have been issued on 9 February 2008. The s 134AB application was not filed until April 2008; of more substance is the fact that Mr Kruisselbrink, it will be recalled,[13] did not attend work on 5 May 2005 and, as his claim form and his affidavit make clear he did not allege that he sustained any injury at work on that day.

40 Before turning to the authorities on the point, it is necessary to mention two decisions of the Court of Appeal dealing with the application of the serious injury provisions under the Act.

41 In Barwon Spinners v Podolak,[14] the court dealt with a raft of issues arising out of a series of cases involving decisions of the County Court in relation to the application of the serious injury provisions of s 134AB. In particular the Court considered the manner in which sub-ss (1), (2) and (16) interact. Phillips JA (speaking for the Court) (also comprising Ormiston and Chernov JJA), said as follows:

With that established, sub-s.(1) is seen to be dominant; it is truly a preface to all that follows in s.134AB, including sub-s.(2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description "serious injury" if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s.134AB addresses - first, in prohibiting a common law proceeding for damages in respect of it "otherwise than as permitted by and in accordance with this section" and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with sub-s.(2) which, though essential, is a part of the overall scheme: it does not exist independently of it. (emphasis added)[15]

In other words, in a serious injury application the attention of the Court is upon the specific injury and it is that which is the subject of the grant of leave or certification. It must be a compensable injury and it must also be linked to employment on or after 20 October 1999.

42 This point was also emphasised in Papercorp Pty Ltd v Nicolaou[16] in which Ashley JA said as follows in relation to s 135A:-

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. (emphasis added)[17]

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.[18]

43 Brambles v Wail,[19] a decision of the Court of Appeal, is directly on point, although it involved consideration of s 135A which applied to work injuries occurring before 12 November 1997.[20] Whilst in certain respects that scheme is considerably different to the s 134AB scheme applicable to injuries after 20 October 1999,[21] the provisions which permit a court to entertain a worker's common law claim are expressed in virtually identical terms. For instance, each provision only permits recovery of damages if the injury is a serious injury.[22] Each provision then sets out similar methods by which a worker may establish serious injury, including arming the Authority with the capacity to issue a certificate.[23]

44 In Brambles, the worker, Mr Wail was injured on 26 July 1993 in the course of his employment. He obtained leave from a County Court judge "to bring proceedings based upon a cause of action said to have arisen on 9 August 1993".[24] At the hearing of the common law trial (often referred to as "the damages trial"), Mr Wail's counsel sought to amend the statement of claim to allege that the injury occurred on 26 July 1993 - which was clearly the correct date. The trial judge granted leave to amend which was then challenged on the appeal, it being said, in effect, that the court did not have jurisdiction to determine the claim given the terms of the original order made by the judge on the serious injury application. The Court (Winneke P, Charles and Batt JJ.A) said as follows after examining the legislative structure of s 135A:

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. 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). (emphasis added)[25]

Pausing here, exactly the same attention is required when the Authority issues a certificate pursuant to s 134AB(16)(a) - is the injury a serious one within the meaning of s 134AB(37) and (38).

45 The provisions of s 134AB, (1), (2), (3) and (16) require the Authority, where considering a certificate, to determine whether the compensable injury is serious as Barwon Spinners and Nicolaou explain. The focus of the Authority is not upon the cause of action which the worker may have, but rather on the nature and effects of the compensable injury. At this point, as s 134AB(16)(a) makes clear, the only enquiry of the Authority relevant to the circumstances which gave rise to the injury is (a) whether the injury arose out of, or in the course of, or due to the nature of employment, so the injury can be said to be compensable; and - (b) in accordance with that sub-section, whether the injury is related to employment on or after 20 October 1999.

46 Apart from these two considerations, then of course the Authority considers the impairment caused by the injury and whether it can be regarded as "serious". Otherwise the circumstances of employment, so far as they are relevant to the damages trial, form no part of the consideration of the Authority in determining at that stage the question of serious injury. If it is so satisfied then it, as required by s 134AB(16(a), issues the certificate.

47 In short, it is no function of the Authority to determine what employment circumstances can or cannot be litigated in the damages trial.

48 It is not necessary to determine whether s 134AB(2)(3) or (16) are, in the true sense, jurisdictional provisions;[26] what is clear is that the worker's proceeding can only be maintained in respect of the employment duties or tasks that have given rise to the serious injury as the section makes clear[27]. So a claim based upon a discrete injury on a different date to that on which the serious injury was sustained, albeit that it was incurred in the course of employment could not be maintained - nor could an allegation of negligence or statutory breach of statutory duty in respect of work not connected with the infliction of the serious injury.

49 Accordingly where a worker demonstrates that his or her injury is indeed serious, and is related to his or her work, then a claim based on those aspects of the giving rise to that injury can be entertained at the damages trial. It is also open to an employer to contend, at trial, that a particular set of work circumstances are not related to the serious injury and therefore cannot form the basis for the proceeding. I will, in a moment, consider the approach to be taken on this issue at an interlocutory stage.

50 Returning to Brambles, the Court also considered the employer's argument concerning the date of serious injury as specified in the order:-

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. What was before the judge demonstrated quite clearly that Wail had complained to his treating doctors that he had injured his back "pulling a trolley" on 26 July 1993 in the course of his employment. That was the injury which was the subject of the "leave application". It became reasonably apparent that the date recorded in the order of the judge who granted leave (namely 9 August 1993) was influenced by the fact that that was the date of the first certificate given by the treating doctor. In our view the judge was correct to regard it as immaterial to the order granting leave, and was also correct to allow the statement of claim to be amended to record a date which was consistent with the claim. Although it is not necessary for us to decide in this case, we can conceive of circumstances where a date will, or might, be material to proceedings brought pursuant to leave, or even to the judge's discretion in the leave application; for example if it demonstrated that the injury sued upon was suffered outside the date prescribed by the legislature for the purpose of identifying a compensable serious injury. However, that is not the case here. We reject this ground of appeal.[28]

51 Brambles therefore demonstrates that on an interlocutory application it is appropriate for a court, in considering the terms of an order granting leave, to have regard to the material provided to the court to clarify the particular injury in respect of which leave was granted. The same would necessarily apply, I suggest, where a certificate under s 134AB(16)(a) has been granted.

52 I do not accept Nationwide's contention that provisions such as s 134AB(4), (5) and (8) have any relevance to the question of the court's ability to entertain a worker's common law claim. Rather, they are to be regarded as facilitative of the manner and process in which an application by a worker to have his or her claim of a serious injury assessed. Those provisions have their own sanctions. For instance, the penalty imposed by s 134AB(11) is an evidentiary bar in respect of a failure to comply with the requirements of disclosure mandated by s 134AB(5) and s 134AB(10). Nor do I think that Nationwide can rely upon s 134AB(12) which sets up the offer and counteroffer provision as in some way imposing a further jurisdictional hurdle. Non-compliance with its provisions may, perhaps, be set up by an employer to found an argument based on lack of jurisdiction such as that considered in Berowra Holdings Pty Ltd v Gordon.[29] (It was not, of course, contended here that the worker had not complied with the conditions of sub-s (12)). But such provisions are not relevant to the determination of serious injury and the entitlement that flows from that decision.

53 The question of the relationship between the serious injury provisions of s 134AB and the manner in which a common law claim for damages is brought in this court has been considered on two occasions:[30] Ronchi v Alcoa Portland Aluminium Pty Ltd,[31] and Harvey v Methodist Ladies College.[32]

54 In Ronchi, notwithstanding that the County Court judge 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",[33] the defendant employer argued that the leave granted to the plaintiff was in respect only of injuries which occurred when driving a hauler on a specific date. Consistent with what had been said in Brambles, the trial judge, Osborn J, examined both the trial judge's reasons and the material before him so as to determine the true nature of the injury for which leave was granted. His Honour concluded that:

It is apparent the injury for which leave to proceed is granted was injury to the lower back suffered during ongoing employment in 1995.[34]

His Honour then directed that the plaintiff's statement of claim be amended in accordance with his ruling.

55 In Harvey, Beach J gave an ex tempore ruling in similar circumstances to those I have encountered (namely amendments being sought to both the statement of claim and the defence alleging that the claim, or parts of it, could not be entertained in the light of the serious injury leave). In that case, the County Court judge had given leave to bring proceedings in respect of injury to the lumbar spine on or about 25 October 2001. The orders were made by consent. His Honour examined the material upon which the parties relied, particularly the affidavit of the plaintiff and came to the following conclusion:

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.[35]

His Honour then said:

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. (Emphasis added)[36]

56 The approach of Beach J is consistent what was said by the Court of Appeal in Brambles, namely that it is the injury, which is the focus of the grant of leave. Provided the events alleged to be productive of the serious injury can be related to the employment (i.e. compensable injury) and it occurred as a result of work after 20 October 1999 then the claim is, at least at the interlocutory stage, tenable unless the employer establishes that there is no basis for linking the serious injury to the work activities.

57 My researches turned up decisions of the County Court relating to this point, namely:-

In each case the learned County Court judge was satisfied, at a preliminary stage, that the pleaded claim (or the amendment sought), was confined to a particular event. In each case the judge appears to have concluded that the serious injury could only have arisen in certain identified circumstances (for instance, as a result of work activities on a certain day rather than over a period of time). I think it implicit in these decisions that no other conclusion was open on the material before the judge. Insofar as those decisions reflect a view that the opinion of the judge granting leave as to the specific work activities which produced the injuries was relevant, I believe that could only be as part of the material which needed to be considered by the judge in determining what work activity was relevant to the serious injury and could, arguably, be relied upon at trial.

58 Finally there is the question of how to deal procedurally and substantively with any alleged disconformity between a certificate and the pleaded statement of claim.

59 The issue as to whether a particular aspect of the worker's employment is related to the certified serious injury (and therefore properly the subject of the proceeding) is, in essence, a factual dispute that will turn upon the evidence of both lay and medical witnesses at trial. It would be uncommon, I suggest, for this issue to be resolved solely upon medical reports and untested affidavit material.[37] The principles in relation to the striking out of a pleading or the entry of summary judgment for a defendant are well known. Only if it is shown that the allegation cannot be maintained at trial can the relevant part of the pleading (or all of it) be struck out. It must be "very clear indeed" to use the words of Dixon J in Dey v Victorian Railways Commissioners.[38] The same applies to a putative amendment - unless it is shown that the amendment is futile in the sense that it could not possibly succeed at trial, then it should, assuming there are no other relevant circumstances, be allowed.

60 As Shepherd J in Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd[39] said:

... a court asked to strike out all or part of a pleading needs to be careful to ensure that giving effect to the application does not prevent a party from making a case which it is entitled to make. One has to err on the side of caution lest one deprive a party of a case which in justice it ought to be able to bring.

61 Recently, in State of Victoria v Richards,[40] the Court of Appeal (Redlich JA, with whom Nettle JA and Hansen AJA agreed) cited with approval the following statement of Kirby P in Wickstead v Browne:[41]

Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellate courts, including this Court, will usually require evidence to be adduced and a trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold.

62 In many cases the Authority grants a certificate specifying an injury occurring on a particular day. That is a convenient way of identifying the injury which is considered to be a serious injury. However it cannot, in doing so, confine at this stage the worker to a specific work activity which is productive of the injury. That is not its task. It may be that it was only a work activity on that day that produced the injury - that often occurs. But it may also be that the serious injury was a result of a variety of work activities over a period of time. That also happens. If there is any real issue about this, it would be uncommon for it to be resolved as "a pleading point" or on an application for summary judgment - particularly as the basis for the granting of the certificate is not known.

63 I think it possible to draw the threads of these authorities together in the following way:

(1) By the grant of a certificate a worker will have established that he or she has sustained compensable injury and that such injury is a serious injury. The existence of a serious injury permits the court to entertain the worker's common law claim for damages;

(2) The determination of the Authority that an injury is serious, relates to the injury alone; the circumstances giving rise to the injury, at this stage, are relevant only in determining that the injury is compensable and arises out of employment occurring on or after 20 October 1999;

(3) A worker can only, in the common law claim, in establishing liability on the part of an employer rely upon those circumstances of his or her employment which are related to the serious injury;

(4) Where an issue at an interlocutory stage arises concerning the effect of a certificate and the ability of the worker to maintain his or her common law claim or a suggested limit on the ambit of that claim then in determining whether part or all of the claim is competent, a court is entitled to look at the material provided to the Authority as part of the s 134AB application;

(5) An interlocutory application relevant to the ability of the worker to maintain his or her claim (either in the form of a summary judgment or striking out part or all of the statement of claim; or in considering whether to permit an amendment of the claim) is just that - interlocutory, not final. An order striking out part or all of a worker's common law claim (or for summary judgment) at this stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself. Similarly, in the case of amendment, absent some other consideration (such as set out in Aon Risk Services Australia Ltd v Australian National University[42]), unless a Court is satisfied that the amendment is futile, it would normally be granted so that the issues can be properly agitated before the jury or judge at the damages trial.

The application to amend paragraphs 3 and 3(a) of the Statement of Claim

64 The relevant parts of Mr Kruisselbrink's s 134AB application included a Form A application, an affidavit sworn 10 April 2008, his claim form, a draft Statement of Claim, a series of medical reports, an engineer's report and the worker's and employer's claim forms. In the application Mr Kruisselbrink nominated the injuries alleged in his statement of claim.

65 In the claim form[43] completed by Mr Kruisselbrink on 16 May 2005, his injury was described as follows:

"Chronic shoulder pain, more severe, right pins and needles and numbness in right arm."

The "physical injury" was described as being to "the right shoulder and right arm". He described the injury being caused or contributed to by "using heavy machines, steam cleaner, vacuuming, buffing, scrubbing machines, mopping". When asked specifically did the injury/condition arise gradually over a period of time, Mr Kruisselbrink replied "Yes". He also stated that "pain gradually getting worse over past eight months".

66 The Register of Injuries held by Nationwide[44] and completed by Mr Kruisselbrink back on 9 May whilst noting a date of injury as 4 May, then said:

Chronic pain in the right shoulder, pain and numbness in the right hand

and nominated that the injury as occurring whilst steam cleaning carpets.

67 The draft statement of claim accompanying the s 134AB application alleged:

The plaintiff sustained injury in the course of his employment with the defendant when he was required to repeatedly use and manoeuvre a steam cleaning machine whilst walking backwards giving rise to the risk of the machine catching on furniture and placing undue strain on the plaintiff's upper limbs and cervical spine in such circumstances.[45]

68 In his affidavit in support of his serious injury application, Mr Kruisselbrink stated that he first commenced working for Nationwide in 2000. In relation to the injuries he said as follows:

9. The subject claim relates to injuries which I sustained in the course of my employment with the defendant as a result of what I believe was an unsafe system of work adopted at Alexander Nursing Home. In those premises were situated a very old steam cleaning machine which was used to clean carpet on a daily basis by reason of the age and condition of the carpet also by reason of the frequent soiling of the carpet that occurred through the elderly citizens who lived there. This was a large machine which was difficult and heavy to manoeuvre, and also had to be manoeuvred whilst I was walking backwards. It was therefore necessary for me to not only control the machine as I used it, but to turn my head from side to side to try and avoid bumping into beds, televisions, chairs or even the occupant of the room while I went about my work.
10. As a result of performing work in accordance with the system I suffered the onset of symptoms on or about 18 October 2004 when the machine came in contact with part of the bed in one of the resident's rooms. I did not realise that the machine had even caught on the bed. I was momentarily jolted to a sudden halt before the machine came free again and I started to fall backwards, but was able to steady myself and the machine.
11. I was aware of pain, particularly affecting my right shoulder, the right side of my neck and my right arm. I had similar symptoms to a lesser extent down my left side also. I went to Casey Medical Centre and saw Dr Arteri. I understand that Dr Arteri thought there was some problem with my neck and he sent me off for an x-ray.
12. The x-ray was performed that day and I understand that it demonstrated the presence of mild degenerative disease involving a C6/7 intervertebral disc but no other significant abnormality.
13. I returned to Dr Auteri on 19 October 2004 and he recommended that I have a nerve conduction study, but ultimately I did not proceed with any nerve conduction study at that time as I was received a telephone call [sic] from Nationwide regarding my injury and I feared I might lose my job if I did not return to work. I continued to have symptoms, particularly in the right side of my neck, shoulder and arm - if I overextend myself when I was at work, but provided I took painkillers and worked at a careful pace, I found that the symptoms did not prevent me from continuing at work.
14. This situation continued on until 4 May 2005 when I suffered a similar injury when the steam cleaning machine again became caught on furniture and I was momentarily severely jolted into a stationary position before the machine became free again and I began to fall backwards. I fell on my backside with the machine still on my hands pushing me further backwards to the ground and the machine ending up lying on top of me.

69 My attention was directed by both counsel to a number of the medical reports which accompanied Mr Kruisselbrink's application. Of primary significance, it seems to me, and I would suggest the delegate of the Authority is the material from the treating doctors at the relevant time. Dr Teo,[46] his General Practitioner, noted as follows:

He [Mr Kruisselbrink] states that he worked 40-60 hours a week as he was often covering shifts for other workers who were on leave. Danny states that his job involves mopping, dusting, vacuuming, general cleaning, steam cleaning of carpets and buffing of floors. He sometimes had to lift the floor washing machine up two flights of stairs.

70 Dr Teo in his report of May 2007 concluded, inter alia, that:

(b) The work performed as a commercial cleaner involved repeated heavy pushing, pulling and lifting for 40-60 hours per week;

(d) I believe that is unlikely to have had such injuries in the absence of his employment at Nationwide Maintenance Services Pty Ltd.

71 Mr Drnda, treating Neurosurgeon, first saw Mr Kruisselbrink on 20 June 2005. He took the following history[47]:

Mr Kruisselbrink told me that he had been working as a cleaner for a significant time. He described that he used heavy machinery to move around and clean. He also said he was using a lot of physical strength and there was a lot of repeated pushing and pulling with his arms. His arms were most of the time outstretched quite often above the level of the chest. He was complaining of pain in the neck, right shoulder and both hands. He said that the pain in his hands woke him during nights. He stated that significant symptoms started in October 2004 and had gradually worsened.

Mr Drnda reached the following conclusion[48]:

Kruisselbrink had extensive injuries in relation to his work. I believe that working as a cleaner he was exposed to severe strain on his neck, right shoulder, both arms and hands which resulted in a number of conditions developed to this severe overuse of his body. In my mind there is no doubt that his condition is work related. The diagnoses are C6/7 paramenal stenosis and cervical spondylosis, bilateral carpal tunnel syndrome, bilateral ulna neuropathy in the cubital canal, rotator cuff syndrome of the right shoulder and possible bilateral thoracic outlet syndrome. All these mentioned conditions are strictly related to work.

72 It is suffice to say that in a number of other medical reports there is reference to the October incident and with ongoing symptoms until the May 2005 flare up.[49]

73 My analysis of this material, in conjunction with the statements of principle which I have set out, leads to the following conclusions:

74 First, Nationwide's primary contention that Mr Kruisselbrink is limited to a claim based upon an incident on 4 May 2004 must be rejected. It cannot possibly be said that the injury (assuming it to be that described in the s 134AB application) is solely related to that event. Indeed the evidence to the contrary is overwhelming. If there is any real issue about this, which I very much doubt, it can be thrashed out at trial.

75 Second, the injury referred to in the certificate is clearly incorrect as Mr Kruisselbrink's case, consistent with the evidence, is that he sustained increased symptoms as a result of his work on 4th not 5th of May:- a day on which he did not work.

76 Third, I think that the only sensible conclusion is that the certificate was intended to be granted in relation to the injuries referred in the s 134AB application (see [15]) and the accompanying draft statement of claim.[50] These injuries are, at least arguably at this stage, referable to Mr Kruisselbrink's employment from 2000 up to 4 May 2004 of which the symptoms experienced by Mr Kruisselbrink on that day were a manifestation. The medical evidence supports the proposition that it was the ongoing work, perhaps exacerbated by the activities in September 2003 and May 2004, which resulted in the significant disc lesion and the other injuries identified in the particulars of injury in the application. I am reinforced in this view by the fact that necessarily the delegate must have had in mind that the impairment produced by the subject injuries satisfied the criteria set out in s 134AB(37) and (38) for both pain and suffering and loss of earning capacity.

77 Fourth, there is, in my view, no issue of prejudice arising out of the granting of the amendment. Mr Curtain contended that the offer and counteroffer process (which is the only way by which the Authority can make an offer with costs consequences under s 134AB(12)) would be contaminated if I granted the amendment. However, the Authority had, when it engaged in that process, a claim form, the reports from the treating doctors to which I have adverted, and the draft Statement of Claim which alleged injury arising out the course of employment, albeit somewhat elliptically. Other than the bland assertion that it may have acted differently, no evidence was lead from the Authority as to what, if any, matters were considered in the course of it making offers (if any) to Mr Kruisselbrink. If this argument was to be seriously mounted, one would expect that the Authority to have demonstrated that it had in some way approached Mr Kruisselbrink's claim on a basis different to that now articulated in the proposed amended Statement of Claim. I am not persuaded that there is any prejudice which will flow to the Authority as a result of the grant of the amendment.

78 It follows, therefore, that the amendments to paragraphs 3 and 3(a) sought by Mr Kruisselbrink to his statement of claim should be granted - subject to paragraph 3 being reconciled with the contents of paragraph 3(b) to which I now turn.

The amendment of paragraph 3(b) of the Statement of Claim and the addition of paragraph 10 of the defence

79 It may be recalled that paragraph 3(b) of the proposed amendment of the Statement of Claim[51] related to the carrying of a heavy floor polishing machine between 2000 and late 2004.

80 The proposed paragraph 10 of the defence asserts that the Court has no jurisdiction to entertain this part of the claim as it did not form part of Mr Kruisselbrink's s 134AB application. This contention, presumably, flows from the decision of the High Court in Berowra Holdings Pty Ltd v Gordon[52] in which an argument as to lack of jurisdiction was maintained in a personal injuries claim by reason of a failure to comply with statutory preconditions for a personal injury claim.

81 In Berowra Holdings, the defendant sought, at the last moment, to amend its defence to assert that certain procedures had not been undertaken by the plaintiff prior to the issue of his claim. The failure to comply with those procedures, so the argument ran, meant that the court was deprived of the ability to determine the claim. The High Court concluded that where a defendant seeks to deny a plaintiff's right "to invoke the jurisdiction of a court"[53] then the procedural provisions of the court must be engaged so that the issue can be dealt with - as has, belatedly, happened here. If Nationwide's argument is made out then the claim under sub-paragraph (b) may be dismissed as incompetent.

82 As I have explained, the worker's entitlement to bring a common law claim is not dependent upon the identification of a cause of action in the s 134AB application but rather upon establishing the existence of serious injury. It is that which gives the Court the capacity to deal with the claim, or perhaps, "issue jurisdiction". The amendment is misconceived and on that basis alone should be refused.

83 In any event, Mr Kruisselbrink's claim form specifically refers to the use of buffing/scrubbing machines as being a cause of his injury. In his account to Dr Teo,[54] he referred to lifting the floor polishing machine up two flights of stairs and to Dr Drnda he referred to having to use heavy machinery.[55] True it is that there is no mention of this precise activity in his affidavit or in his draft statement of claim. No doubt that is a matter that will form the subject of cross-examination by Nationwide at the trial. It does not, however, form the basis for an argument that the court cannot, at least at this stage, entertain an allegation that his serious injury is related to this aspect of his work. Whether he makes out the claim at trial is not an issue now - on any view it is arguable.

84 Mr Kruisselbrink should be given leave to amend his statement of claim so far as it relates to paragraph 3(b). The amendment of the defence, as currently pleaded, should be refused.

85 If Nationwide wishes to contend that certain aspects of Mr Kruisselbrink's employment are not related to his serious injury and cannot found a damages claim, then it should be allowed to amend its defence accordingly. However, this issue cannot be resolved until the evidence is concluded, and that challenge, if successful may, it seems to me, run the risk of the discharge of the jury (assuming Nationwide maintains its insistence upon trial by jury). This, of course, will be a matter for the trial judge.

86 If Nationwide wishes to replead its defence, as I have indicated, I would grant it leave to do so.

87 Mr Kruisselbrink should be granted leave to amend his statement of claim in the form sought provided there is consistency between the general allegation in paragraph 3 and the particularisation in paragraphs (a) and (b).

88 Nationwide is refused leave to amend its defence in its current form, but is given leave to replead its defence, if it wishes, within 21 days.

[2] Affidavit of Mark Menz [14] and [15].

[6] The full text is set out at paragraph [19] below with the amendments now sought italicized.

[8] See Harvey v Methodist Ladies College [2008] VSC 425 [14]; Meduffl & Simpson [1968] VicRp 7; [1968] VR 62.

[9] I note that it is still not possible to reconcile the dates in the general paragraph with these contained in 3(b).

[11] It was accepted by the parties that Nationwide's material was considered by the Authority's delegate prior to issuing the certificate.

[21] Ibid see s 134AB(1).

[26] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364.

[28] Brambles v Wail [2002] VSCA 150, [20].

[30] I have put to one side the decision of Cavanough J in O'Neill v T D Williamson (Aust) Pty Ltd [2008] VSC 398 which relates to a deemed serious injury.

[37] Although I note that this is what occurred in the County Court decisions I have referred to.

[38] [1949] HCA 1; (1948) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 128-130.

[49] See for instance the report of Mr Brierley CB83, Mr Blombury CB111.

[50] No issue was raised by Nationwide on this application that the injuries described in the particulars could not satisfy the serious injury criteria.

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