Plaintiff v First Defendant Second Defendant

Supreme Court of Victoria|2009-12-02|Before: J. FORREST J

The application to plead voluntary assumption of risk

32 The application by W.V. Management to plead voluntary assumption of risk should be refused for the following reasons.

33 First, whilst I accept that the factual substratum of the defence has been known to Mr Tinworth, it was thought to be relevant only in the context of the asserted breach of duty on the part of W.V. Management. The defence of voluntary assumption of risk is rare, if not close to extinct, in the context of industrial accident litigation. When canvassed the defence raises markedly different considerations to those relevant to breach of duty, namely, identification of the particular risk, the level of knowledge of the plaintiff of the risk, the agreement of the plaintiff to undertake the risk and whether that risk is the one that eventuated in terms being the cause of the plaintiff's injuries. None of this could have been reasonably anticipated as an issue in this case until the draft was produced on the day before the trial was due to commence (30 November).

34 Second, the timing of the application. The application was first made as a jury of six waited to be chosen from a jury panel summonsed to attend Court that morning. The only foreshadowing of the application was made in the afternoon of the previous day. The jury was subsequently empanelled and sent away pending the resolution of the application to be heard that afternoon. The proceeding had been on foot for nearly three years and W.V. Management had been aware of the nature of Mr Tinworth's claim for nearly six years. No amendment had been sought, notwithstanding the Court dealing with applications in the proceeding on no less than sixteen occasions.

35 Third, W.V. Management not only failed to raise this issue at any of the previous hearings before Masters or Associate Justices of this Court, but also at the callover I conducted on Wednesday 25 November 2009. At that hearing there was no mention of the application to amend the defence. One of the purposes of the callover was to ensure that the circuit could commence and proceed without interruption. Not a word was said of any pleading amendments or the possibility of the trial being delayed pending argument over the state of the pleadings. This is of considerable relevance, particularly in light of the observations made by the High Court in Aon to which I have referred. Circuit litigation in the Supreme Court occurs in regional centres generally on one occasion each year. The sittings usually occupy three to four weeks. There is limited time and Court resources available to the parties; it is imperative that a party ensures his or her case is ready to proceed, and certainly, alerts the Court to any interlocutory issue, before the sittings commences. This assists both the Court and other parties with cases in the list and encourages public confidence, particularly in regional areas. In this case, W.V. Management simply remained silent until the last moment. It is not, of course, to be punished for its behaviour, but, in light of the Aon principles, it is relevant that it failed to take any opportunity to alert the Court to its proposed amendments until the last possible moment.

36 Fourth, the lack of any explanation whatsoever for failing to make the application at any of the hearings before Masters or Associate Justices of this Court, or at the callover, is, simply put, remarkable. Aon makes it clear that where a party seeks an indulgence in the form of a late amendment an explanation should be proffered for its failure to make the application in a timely fashion and as provided for by the Rules of Court. Not a shred of evidence has been led to explain why this application was made on the first day of the scheduled jury trial. The provision (or absence) of a satisfactory explanation is relevant in determining whether to grant such an application.

37 Fifth, if the amendment had been sought in a timely fashion, it would have been open to Mr Tinworth to argue it should not be permitted on the grounds that it did not disclose an arguable defence. That application would have been considered by an Associate Justice of the Court and determined after hearing submissions on both the law and pleadings. In this case, Mr Tinworth has been denied this opportunity. In its place, I am required to determine, whilst an empanelled jury awaits my ruling, the validity of the plea. To put it mildly, this is unsatisfactory.

38 In summary the conduct[10] of W.V. Management in making this application at the last moment without any explanation for its failure to do so, during the three years since the claim was issued, is such that there is no persuasive reason for an exercise of the Courts' discretion to permit the amendment sought on this issue. I would refuse the application on this basis alone.

39 Even if I thought the amendment should be allowed, it seems to me there are insurmountable difficulties facing this defence.

40 The extent of Mr Tinworth's knowledge of the risk of Q fever is premised, in a large part, upon the provision of certain documents by W.V. Management to Mr Tinworth. If this application had been made in a timely fashion, the question as to the admissibility of those documents[11] could have been considered and ruled upon at that time.

41 In any event, I think it highly unlikely that a defence of voluntary assumption of risk can be made out on the facts set out in the draft. The defence requires proof that the plaintiff voluntarily and knowingly accepted the risk which led to his or her injuries[12]. Rarely is such a defence tenable in an industrial accident situation - as many aspects of employment, particularly those involving manual labour, carry inherent risks. A defence of voluntary assumption of risk on the part of an employee cannot be founded on awareness, at the commencement of employment, of risks associated with that employment and, perhaps, the employer's efforts to endeavour to reduce his or her exposure to such risks. Many employees taking on employment are aware that there are particular risks associated with the job. That is part of the contract of employment. That does not mean that an employee, voluntarily agrees to accept that risk by taking on the job. To the contrary an employee is entitled to expect, as the law requires, the employer to exercise reasonable care consistent with the non-delegable nature of the employer's duty.[13] The employer is required, as far as reasonable care will permit, to reduce those risks bearing in mind considerations of occupational health and safety are part of an employer's obligation to provide and enforce a safe system of work[14]. The fact that work involves certain dangers, does not mean there is a diminution of the duty - an employer is bound to take those dangers into account in formulating and enforcing the system of work.[15] An employee is not precluded from recovering damages based on an employer's negligence merely because he or she understands the risks associated with a job and agrees to take it on - as W.V. Management argues. To adopt the words of Kirby J. in State of NSW v Fahy on this issue, "all the legal reasoning argues to the contrary".[16]

42 This is of course not to say the factual matters relied upon by W.V. Management cannot be deployed to meet an argument by Mr Tinworth in relation to breach of duty.

The application to plead that the plaintiff's claim is barred by s 134AB(12) of the Act

43 The considerations in determining the fate of this proposed amendment are somewhat different to those relating to the allegation of voluntary assumption of risk. Mr Tinworth did not seek to make a claim for pecuniary loss damages until early August of this year when he sought leave of the Court to amend the statement of claim to add this element. Although the correspondence between the solicitors is not entirely clear[17], I interpret it as meaning that W.V. Management consented to the amendment of the statement of claim, but reserved its right to argue that the statutory offer made by the worker pursuant to s 134AB(12)(c) of the Act did not comply with that sub-section and therefore sub-s (14) applied, deeming the worker to have made a statutory offer of the maximum amount of the damages.[18] Not only was there no opposition to the application, but there was also no suggestion, at that time, that Mr Tinworth was barred from making a claim for pecuniary loss.

44 When the proceeding was called over before me last Wednesday (25 November), the solicitor for W.V. Management did not suggest that the position adopted in August 2009 was likely to change nor that an application to amend the defence would be made at Wodonga - when the jury was ready to be empanelled.

45 The application to amend the defence to plead s 134AB(12) as a statutory bar to pecuniary loss damages should be rejected for the following reasons.

46 First the timing of the application, and I repeat the matters I set out in paragraph [34]. Whilst there was a far smaller window of opportunity for W.V. Management to take issue with the claim for pecuniary loss, its conduct is bewildering. Having consented to (or at the very least, not opposed) the amendment to the Statement of Claim and reserved its right to argue the question of costs, it has at the last moment asserted that Mr Tinworth is now precluded from maintaining a pecuniary loss claim. The appropriate time for the contest to be had was, clearly, at the time of the application to amend the Statement of Claim. Arguments about whether he was entitled to do so should have been dealt with at that time. It is simply not acceptable to make such an allegation at the eleventh hour or perhaps more accurately 11.59 am.

47 Second, W.V. Management initially reserved its right, sensibly, to argue a question relevant to costs. It then chose to raise a plea barring a significant part of Mr Tinworth's claim. A Court should not encourage conduct such as this which in a sense smacks of approbation and reprobation. It can be assumed the decision to consent to (or not oppose) the application to amend, was made after thoughtful consideration of Mr Tinworth's entitlement to bring a claim for pecuniary loss. The solicitors acting for W.V. Management are vastly experienced in this field of litigation and the decision to change tack dramatically on the eve of the trial, in my view, with the consequences it has caused to the orderly progress of the trial, undermines court management processes and, I think, public confidence.

48 Third, and this is related to the second point, there is no explanation by the solicitors or their client as to why this amendment is sought at the last moment. To the contrary, there is a deafening silence and not a hint as to why the argument has changed from a debate about costs to an assertion that the plaintiff is statute barred from bringing a claim for pecuniary loss. I repeat my observations at [36].

49 Fourth, there is the reasonable expectation of the plaintiff. The plaintiff's pleaded injuries are significant. He is only 31 years of age and has already undergone open heart surgery and is said to require further similar surgery. He was entitled to think that, having succeeded in obtaining his amendment, he was able to pursue his claim for pecuniary loss, which is one of some magnitude. To permit this amendment at the last moment, which could arguably deprive him of that entitlement is, I think, unacceptable and brings the law into dispute.

50 Fifth, there is a real prospect that if W.V. Management was permitted to amend the defence, the trial would need to be delayed or postponed to the next sittings. Although counsel did not refer to this issue, I think there is at least an arguable case on behalf of Mr Tinworth that W.V. Management's conduct in changing tack may amount to a waiver of its capacity to rely upon s 134AB(12) as a bar to the pecuniary loss claim. Arguably, it may also constitute an estoppel.[19] Certainly, Mr Tinworth would need to be given time to consider whether he wished to plead a reply to the amended defence which, in turn, would jeopardise the hearing of his claim at this sitting.

51 For the reasons I have stated, I would refuse the amendment on discretionary grounds alone. However, I should, out of deference to the arguments of counsel, deal, as best I can in the limited time, with the nature of the amendment itself.

52 No evidence was led to support this application. However it appears to have been accepted that Mr Tinworth had complied with the conditions of s 134AB(12) save for, so it was said, the fact that his counter-offer in accordance with s. 134AB(12)(c) being confined to pain and suffering.

53 I do not accept that s 134AB(12) can be relied upon to preclude Mr Tinworth from maintaining a claim for pecuniary loss at trial.

54 Here it is necessary to say something about the structure of s.134AB. Where an impairment assessment falls short of 30% the worker (absent a certificate under s.134AB(16)(a)) must make an application to the Court for leave to bring a claim based upon the Court's assessment of the impairment as stipulated in s.134AB(37) and (38). That process requires determination of the worker's impairment by reference to separate concepts of pain and suffering and loss of earning capacity.

55 That form of distinction, using different terminology, is also applicable to awards of damages which require a Court, in effect, to give separate determinations or in jury trials, separate verdicts as to pain and suffering and pecuniary loss: s.134AB(22).

56 However no such distinction exists where a worker, such as Mr Tinworth, is able to bring a claim by virtue of the impairment assessment being 30% or more. S.134AB(15) simply deems the worker to have a serious injury - without any limitation or differentiation as to the type of damages he or she may claim. That section imposes no restriction on how the worker may frame his or her damages claim. It entitled Mr Tinworth to pursue a claim for both pain and suffering loss and pecuniary loss.

57 The terms of s.134AB(12) - which deal with offers and counter- offers - do not link a worker's entitlement to make a claim for pecuniary loss, with any condition or stipulation as to the way in which the worker's counter offer is put. Rather the sub-section requires as a condition precedent to the issue of proceedings (note the words used) a timetable to be adhered to and, that the worker:

(a) participate in a conference with the Authority[20] (s.134AB(12)(a));

(b) make a statutory counter offer if the Authority's offer is not accepted: s. 134AB(12)(c).

Provided the worker complies with these conditions he or she is able to commence the action. There was no suggestion in this case that Mr Tinworth had not complied with the requirement to make a statutory offer or to participate in the conference as mandated by the section. It was not said the proceedings were irregularly instituted.[21] In other words Mr Tinworth attended a conference and made a counter-offer at appropriate times and in doing so complied with the terms of the sub-section.

58 As I have just said it was not suggested that Mr Tinworth was barred from commencing proceedings, which is the effect of non-compliance with the terms of s. 134AB(12). Rather, it is divined from the terms of that provision that there is an implied bar upon a claim for pecuniary loss if the worker's counter-offer does not include an offer encompassing such a claim. There is no warrant, in my view, to read such an implication into this provision. If the legislature wished to prescribe the manner in which a counter offer was to be made and mandate a consequence of such significance preventing the worker bringing a substantive part of his or her claim, it would, I think, have said so in clear and unequivocal terms.

59 It is true, as counsel for W.V. Management said, that s 134AB sets out a code by which damages can be claimed in proceedings governed by the Act. However inherent in that code is the right of a worker to bring a claim for pecuniary loss damages. Once Mr Tinworth demonstrated a degree of impairment of 30% or more, serious injury was established and, with it, the putative right to bring a claim for damages, both for pain and suffering and pecuniary loss subject to the provisions of the Act. If the legislature wished to prevent the exercise of that right (or part of it), clear and unambiguous language was required. As I have said no such language is apparent - nothing is said, in terms, in either s. 134AB(12) or (28) in relation to the prohibition of the entitlement to bring a pecuniary loss claim by reason of the form of the counter-offer.

60 Whilst I accept the purpose of sub-s (12) is to endeavour to set up a regime promoting the resolution of the proceeding, I can see nothing in the wording of the sub-section specifying the terms or form of the counter offer, provided that offer is made. The form of the offer and counter offer is not inhibited by the Act. I repeat what I have said earlier that the bar is to the commencement of proceedings in the event of non-compliance - no more and no less.

61 Neither of the provisions of the Act relied upon by W.V. Management, (s 134AB(12) and s 134AB(28)), in terms, say anything about the entitlement to bring a claim for pecuniary loss. One is concerned with pre-issue negotiations, and the other with awards of costs. The two sections work together by mandating pre-issue negotiations and costs penalties consequent upon the result taking into account the offers and counter-offers made pursuant to sub-s (12). It may be, as counsel for Mr Tinworth suggested, that the counter offer, limited to pain and suffering, did not necessarily comply with sub-s (12)(c). If that be accepted, then sub-s (14) may deem the offer to be that of statutory maximum for damages prescribed by s.134AB(22). That, it seems to me, may be the real penalty imposed upon a worker whose counter-offer is non-compliant with sub-s (12)(c) - not the barring of a significant part of his or her claim but for the burden of a counter-offer of the maximum damages recoverable in a common law claim.

62 It follows that even if I was disposed to allow the amendment I am of the view that the contention is futile and the claim for pecuniary loss is not prohibited by reason of s.134AB(12).

63 The amendment sought to refine the allegations of contributory negligence will be permitted. The application is otherwise refused.

[1] The original claim was for pain and suffering only. In August of this year, an additional claim for pecuniary loss was added pursuant to the order of Daly AsJ.

[6] Aon Gummow, Hayne, Crennan, Kieffel, Bell JJ [111]-[113].

[8] Aon Gummow, Hayne, Crennan, Kieffel and Bell JJ [95].

[9] Aon [133] citing Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2007] NSWSC 753 [15]

[12] Rogenkemp v Bennett [1950] HCA 23; [1950] 80 CLR 292.

[13] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

[14] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 312

[15] Doumit v Jabbs Excavations Pty Ltd NSWCA 360 [71] - [72].

[18] Section 134AB(22) sets thresholds and ceilings in relation to both pecuniary loss damages and pain and suffering damages.

[19] See Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

[21] See Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 [15] and [16].

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Judgment (51 paragraphs)

Cases Cited (8)