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County Court of Victoria |
Last Updated: 20 April 2015
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Revised
Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: ACCIDENT COMPENSATION
Catchwords: Limits of grant under s134AB(16)(b) of the Act
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Brambles Ltd v Wail [2002] VSCA 150; [2002] 5 VR 169; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Kaltsis v Ice Design Pty Ltd [2012] VCC 623; Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647; Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; Harvey v Methodist Ladies College [2008] VSC 425.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Zaparas Lawyers
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For the Defendant
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Wisewould Mahony
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Introduction
1 Zoe Kaltsis, whom I shall refer to as “the plaintiff”, sues her employer, Ice Design Pty Ltd, which company I shall refer to as “the defendant”, for injuries she allegedly sustained in the course of her employment with the defendant.
2 The matter was listed for a jury trial on 6 October 2014.
3 Prior to the commencement of the jury trial, the parties requested that I determine the question of amendments to both the Statement of Claim and the Defence.
4 In essence, the issue arising from such amendments is what constraints (if any) are imposed upon the plaintiff’s common law claim by reason of the Order made by his Honour Judge Misso granting leave to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”) to recover damages for pain and suffering and loss of earning capacity by way of injury arising out of or in the course of her employment with the defendant.
5 After hearing the competing submissions, I ordered that the matter be taken out of the List and, in particular, further ordered:
(a) the plaintiff to file and serve an amended statement of claim by close of business on 13 October 2014;
(b) the defence to such amended statement of claim to be filed and served by close of business on 20 October 2014;
(c) the plaintiff to file and serve written submissions by close of business on 6 November 2014;
(d) the defendant to file and serve written submissions by close of business on 13 November 2014;
(e) the plaintiff to serve any further reply by close of business on 16 November 2014;
(f) the question of costs to be reserved.
6 Together with these submissions, the parties also provided a Joint Court Book (“JCB”) containing various documents for me to peruse, said to have relevance to the resolution of this issue.[1]
Factual background
7 On the basis of the material contained in the JCB, I set out the following matters which seemingly are not in contest:
(a) The plaintiff is a forty-two year old[2] woman, separated from her husband, who has the custody of two sons. She is presently in receipt of the Disability Pension.
(b) She commenced employment with the defendant, which conducts ladies’ fashion stores, and from 1995, she had been a store manager at the City store and various suburban outlets.
(c) On 28 February 2008, she fell from a ladder during the course of her employment with the defendant. On 3 March 2008, a Claim for Compensation was lodged pursuant to the provisions of the Act, alleging injuries to the:
“neck, upper and lower back, shoulder right arm and wrist.”
Such claim was accepted.
(d) The plaintiff was off work from 1 March 2008 to 26 May 2008, when she resumed working with the defendant, four hours a day, three days a week, during which time she was attending customers but not operating as a store manager.
(e) In late January 2009, the plaintiff was certified fit to return to normal duties and the plaintiff resumed full-time employment.
(f) On 24 February 2009, the plaintiff ceased employment, and on 2 March 2009, completed a Claim for Compensation in respect of an alleged psychological injury arising out of or in the course of her employment. Such Claim for Compensation was rejected.
(g) On or about 19 October 2010, the plaintiff lodged a Form A Application[3] pursuant to s134AB(3) of the Act wherein:
In particular, the plaintiff also alleged that during the period of her being off work to 26 May 2008 and the period of work following from 26 May 2008, when she returned to work on a return to work plan, the defendant unreasonably treated the plaintiff. In particular, on her return to full duties, the defendant acted unreasonably by making a demand that the plaintiff accept a transfer of employment to another outlet.
The particulars of negligence were also extended to allege certain activities of the defendant during the time that the plaintiff was back at work, caused or contributed to the plaintiff’s, presumably, psychological condition.
The plaintiff; Kim Moutidis; the psychiatrist, Dr Handrinos; the general practitioner, Dr Stragalinos; the psychologist, Ms Hambleton; Ms Bartholomew, and Ms Dickson, all gave evidence and were cross-examined. The parties also tendered a variety of other documents including medical reports.
At the time of the hearing of the Originating Motion, the plaintiff filed a “Statement of Issues”.[16] In that document, the plaintiff asserted that:
(i) she had an accepted claim for neck and right shoulder injury which occurred on 28 February 2008 when she fell from a ladder;
(ii) the defendant paid weekly payments of compensation and medical expenses for the psychiatric injury (the second claim for compensation) with a denial of liability from 25 February 2009 to 15 December 2009;
(iii) the plaintiff asserts that “her psychiatric injury has primarily been caused by unreasonable behaviour by members and management following her return to work after the neck-shoulder injury”. Counsel for the plaintiff acknowledged that the defendant denies such allegations.
In her first affidavit, the plaintiff describes the fall from the ladder on 28 February 2008 and describes various organic consequences of that fall.[17] The plaintiff also deposes that she returned to work on 26 May 2008 and that when she returned to work, she felt “that I was not being well treated and that management wanted me out”.[18] The plaintiff also describes the demand of the defendant that she transfer to another branch of the defendant, which she found to be “a stress for me”. In particular, the plaintiff deposed:
“... I felt very insecure and anxious about my future. I found that I was shaking at times and could not sleep. I had increased neck pain and a lot of severe headaches.”[19]
Later in her affidavit, the plaintiff deposes:
“I believe I injured my neck and suffered psychological stress as a result of falling from a ladder in the course of my employment with the employer on the 28th February, 2008 ... .”[20]
8 In a report dated 31 May 2009, the treating general practitioner, Dr N Stragalinos, states, in part:
“I strongly believe that her work is a significant contributing factor and responsible for her current persisting severe anxiety and major depression due to the initial severe work related injury in February 2008 resulting in severe soft tissue injuries and sprain to her cervical, thoracic and lumbar spine with a significant initial 3 month period off work prior to returning to light duties in her new role as a sales assistant which was undermining and perpetuating stressful work related factors mentioned above where she was harassed and discriminated by her work colleague/manager and the final significant work incident where she was unreasonably asked to relocate to a new distant store despite doing well and maintaining good sales figures in her current Dandenong store.”[21]
I also refer to a report of the consultant psychiatrist, Dr N Strauss, dated 14 March 2009 (Dr Strauss examined the plaintiff on behalf of the defendant) wherein he states, in part:
“Unfortunately this woman’s situation has not improved since I last saw her.She still has a chronic adjustment disorder with mixed anxiety and depressed mood and she has a tendency to panic. She has isolated herself at home to a certain extent.
I believe now that some of her pain is psychologically based and she has a pain disorder associated with her medical condition and psychological factors.
I note that she suffered an initial trauma at work from a physical perspective and this has led to the development of her pain disorder. In other words she tends to manifest emotional upset in the form of pain.
At this stage I have no evidence to suggest that this woman is deliberately over exaggerating her symptoms.
She still believes that she was treated unreasonably and this appears to be at the basis of her psychiatric problems although the fall at work is also relevant.
... .”[22]
9 As already recorded, Judge Misso, on 18 May 2012, granted leave to the plaintiff “to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant”.
10 Those acting for the defendant highlight what was said in the address by Leading Counsel for the plaintiff during the course of the “serious injury” application.[23] She stated:
“The injury is put fairly and squarely as arising from the unreasonable behaviour – of what the plaintiff sees as the unreasonable behaviour by the defendant of her following her return to work in May 2008, and even continuing after she ceased work on 24 February 2009 as is evidenced by the letters from Miss Sahagun on 6 April and one in May about refusing to pay her any holiday pay. I’ll come back to that evidence. That’s how the case is put and that’s what the plaintiff relies on, the plaintiff says, or it’s said on behalf of the plaintiff, there is no disentangling to do here. There is no evidence that the plaintiff has suffered a psychiatric injury as a result of the physical injuries that she suffered.... .”[24]
11 In his Judgment, Judge Misso states, in part:
“It is only necessary to set out a short summary of the medical treatment which she obtained for the injury she suffered in the fall because the claim made by the plaintiff for serious injury is based upon a psychiatric injury which she suffered as a result of the way in which she perceived she was treated by the defendant following her return to work.”[25](my emphasis)
12 In his judgment, Judge Misso notes that the primary defence raised by the defendant in the serious injury application was whether the plaintiff suffered a compensable injury. After perusing the evidence, Judge Misso noted that:
“The plaintiff perceived that when she first returned to work she was not well treated and that ‘management wanted me out’. Following her return to normal duties she ‘felt that I was not accepted by management of the employer’. The plaintiff’s evidence left me with the impression that the basis for her perception of an attitude by management was based upon a number of specific matters.... .”[26]
13 Judge Misso found that the plaintiff had established a “compensable psychiatric injury” and in particular, relied on the High Court decision of Federal Broom Co Pty Ltd v Semlitch.[27]
14 Judge Misso accepted the evidence of Dr Stragalinos, Dr Handrinos and Ms Hambleton that the plaintiff suffered a major psychiatric injury which is disabling to the extent that she was unfit for work. Furthermore, Judge Misso accepted the evidence of Dr Stragalinos that the plaintiff was suffering from a secondary condition causally related to the onset of the psychiatric condition, being fibromyalgia constituted by generalised pains.[28]
15 I consider it clear that Judge Misso found such a compensable psychiatric injury on the basis of the plaintiff’s perception of various events after she returned to work following the fall from the ladder.
The Statement of Claim sought to be relied on by the plaintiff
16 Pursuant to the Order made on 6 October 2014, the plaintiff filed and served an Amended Statement of Claim which reads:
“1. The defendant is and was at all material times a company incorporated pursuant to the laws of the State of Victoria.
Fall from ladder
4A. The Defendant was at all material times under a duty to the Plaintiff to take reasonable care for her safety by providing a safe place of work for her and proper and safe plant and appliances for her work and a proper and safe system of conducting her work and efficient supervision of such work.
4B. The incident occurred by reason of the Defendant’s breach of the duty in that it failed to provide a proper and safe place of work for the Plaintiff and proper and safe plant and appliances for her work and a proper and safe system of conducting her work and efficient supervision of same.
PARTICULARS OF NEGLIGENCE
(a) Failing to provide a safe system of work for the Plaintiff;
(b) Failing to provide a safe place of work for the Plaintiff;
(c) Failing to properly supervise the Plaintiff in her duties;
(d) Failing to properly instruct the Plaintiff as to her duties;
(e) Failing to provide the Plaintiff with safe plant and equipment with which to work;
(f) Causing or allowing the Plaintiff to perform a forceable task removing a rail from fixtures on the wall whilst standing on an A frame ladder in circumstances in which there was an unreasonable risk of injury to the Plaintiff;
(g) Failing to provide the Plaintiff with a method of removing rails from fixtures on the walls without unreasonable risk that the Plaintiff could fall in the process;
(h) Requiring the Plaintiff to work at such a height that the work could only be done from the first or second step down from the top of the ladder used by the Plaintiff;
(i) Failing to provide a person to hold or steady the ladder;
(j) Failing to provide the Plaintiff with a safe and secure platform on which to work in the circumstances;
(k) Failing to properly investigate the extent to which the movements the Plaintiff might perform in carrying out tasks for removing rails from fixtures on the wall might cause injury;
(l) Failing to provide the Plaintiff with any or any adequate assistance in the performance of her duties;
(m) Failing to take necessary measures whether by supplying extra staff to assist the Plaintiff or by supplying effective mechanical means to assist the Plaintiff or otherwise to prevent her from being injured while performing the duties she was doing at the time of the incident;
(n) Requiring the Plaintiff to perform the work when it knew, or ought to have known, that doing so would expose the Plaintiff to risk of injury;
(o) Failing to comply with the provisions of the Occupational Health and Safety Act 2004 and the regulations made thereunder.
4C. Further or alternatively, the incident occurred by reason of the Defendant’s breach of the provisions of the Occupational Health and Safety Regulations 2007 (‘the Regulations’) and in particular, failing to comply with Part 3.3, Prevention of Falls.
Return to Work
5A. From about March 2008, the Defendant commenced planning the return to work of the Plaintiff.
6A. The Defendant in planning and implementing the Plaintiff’s return to work owed a continuation of the duties set out in paragraph 4A hereof.6B. In the course of the Plaintiff’s return to work the Defendant breached the duties set out in paragraph 4A hereof that it owed to the Plaintiff.
PARTICULARS OF NEGLIGENCE
(a) Failing to provide appropriate duties to the Plaintiff upon her return to work;
(b) Failing to ensure that the return to work tasks allocated to the Plaintiff accorded with medical advice;
(c) Failing to offer the Plaintiff duties ordinarily performed by a store manager;
(d) Requiring the Plaintiff to work as a sales assistant;
(e) Excluding the Plaintiff from store management meetings and informal management discussions;
(f) Changing the Plaintiff’s hours and days of work without consultation with her;
(g) Requiring the Plaintiff to work every Saturday when this task should be shared with the other store manager;
(h) Excluding the Plaintiff from participation in the management of the store;
(i) Preventing the Plaintiff from accessing the Defendant’s computer system as a store manager from about 27 May 2008 to about December 2008;
(j) Unreasonably questioning the Plaintiff about her medical certificates, work restrictions and treatment;
(k) Denying the Plaintiff access to the store phone;
(l) Denying the Plaintiff a sales bonus in January 2009;
(m) Removing the store phone handset from the shop floor;
(n) Acting contrary to the medical advice of Dr Michael Duke dated 18 November 2008 that the Plaintiff be supported in returning to work in a management capacity at the Defendant’s Dandenong store;
(o) On 24 February 2009, requiring the Plaintiff to transfer stores to either the Melbourne CBD or Knox;
(p) Sending letters to the Plaintiff after 24 February 2009 which threatened to terminate the Plaintiff’s employment if she did not return to work;
(q) Engaging in the conduct at (a) to (p) above when the Defendant knew, or ought to have known, that doing so would expose the Plaintiff to a risk of injury.
6C. As a consequence of the incident, the Plaintiff suffered injury.
PARTICULARS OF INJURY
Musculo ligamentous injury to the structures surrounding the neck and right shoulder;
Cervical disc injury;
Gastro-intestinal dysfunction;
Major depression and adjustment disorder;
Chronic pain syndrome;
Fibromyalgia syndrome.
6D. In the alternative as a consequence of the incident together with the breaches referred to in paragraph 6B hereof the Plaintiff has suffered injury.
PARTICULARS OF INJURY
The Plaintiff refers to and repeats the particulars of injury in paragraph 6C.
6E. Further or alternatively, as a consequence of the breaches referred to in paragraph 6B hereof the Plaintiff has suffered injury.
PARTICULARS OF INJURY
Major depression and adjustment disorder;
Chronic pain syndrome;
Fibromyalgia syndrome.
PARTICULARS PURSUANT TO ORDER 13.10(4)
(a) Medical and like expenses
The Plaintiff by reason of provisions of the Accident Compensation Act makes no claim for hospital, medical and like expenses.
(b) Loss of Earnings and Loss of Earnings Capacity
The Plaintiff was born on 30 October 1972. The Plaintiff was employed by the Defendant from in or about 1994 or 1995 at rates known to the Defendant. The Plaintiff was incapacitated for employment between 28 February 2008 and 26 May 2008 and restricted in her employment between 26 May 2008 and 24 February 2009 and has since been totally incapacitated for employment. The Plaintiff prior to the incident was earning approximately $623.56 net per week plus bonuses. The Plaintiff has suffered a loss of earnings from 28 February 2008 at rates known to the Defendant. The Plaintiff will continue to suffer loss of earnings into the foreseeable future.
17 By way of a Defence to the Amended Statement of Claim, the defendant asserts, amongst other matters, that:
(a) The allegations contained in paragraphs 4B and 4C of the Statement of Claim are denied, and further “that the allegations are irrelevant and embarrassing and raised for an impermissible collateral purpose”;
(b) Significantly, paragraph 14 of the Defence to the Amended Statement of Claim states:
“Further, it says that:(a) the plaintiff has not been granted leave to commence proceedings to recover damages pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic.) in respect of injury sustained on or about 28 February 2008;
(b) by reason of the order of His Honour Judge Misso made 18 May 2012, the plaintiff was granted leave to commence proceedings to recover damages pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic.) only in respect of injury arising out of her employment with the defendant during the period 26 May 2008 until 24 February 2009; and
(c) having regard to the order of His Honour Judge Misso made 18 May 2012, the plaintiff is precluded from:
(i) relying upon the alleged incident on or about 28 February 2008 as giving rise to a cause of action for damages in this proceeding;
(ii) claiming damages for injuries suffered by reason of the alleged incident; and
(d) the prayer for relief is embarrassing as it does not indicate in respect of which particulars of injuries the damages are claimed.”[30]
The submissions of the parties
18 In their written submissions, counsel for the defendant set out what they refer to as a “summary” of the position of the defendant. Such summary is consistent with paragraph 14 of the Defence, save in the summary, sub-paragraph (b) adds the word “psych” prior to the word “injury” in the third line.
19 The fundamental position of the defendant is that, as a result of the judgment by his Honour Judge Misso, the plaintiff is limited in her common law claim to alleging that the negligence of the defendant over the period from 26 May 2008 to 24 February 2009 was a cause of a psychiatric injury suffered by her. The plaintiff cannot rely on any cause of action in respect of the fall from the ladder on 28 January 2008.
20 In their written submissions, counsel for the plaintiff set out what they refer to as an “Executive Summary” which, in part, states:
“3. For the reasons set out below, the defendant’s submissions should be rejected for the following reasons:(a) a grant of leave under s 134AB(16) is made in relation to an injury, not in relation to a cause of action[31] and the Act treats the steps taken under it before common law proceedings may be brought as wholly irrelevant to those common law proceedings;[32]
(b) as a matter of construction, the meaning of section 134AB(16)(b) must be determined by reference to the language of the instrument viewed as a whole.[33] Had the plaintiff received permission to bring a common law claim via one or the other gateways,[34] it could not be said that the plaintiff is now restricted to a particular cause of action;
(c) an order striking out part or all of the plaintiff’s common law claim at the interlocutory stage should only be made if it is clear beyond argument, that the alleged employment circumstances have no relationship to the serious injury itself[35] — this is not the case on these facts and it is in the very least arguable that the fall from the ladder is related to the plaintiff’s psychiatric injury;[36]
(d) having established that the amendments are arguable, in that they raise a triable issue or issues of fact or law,[37] whether they ought succeed is a matter for the trial judge to determine;
(e) the plaintiff will be prejudiced in her damages claim if its scope is limited in the manner proposed by the defendant and will be prevented from bringing a second serious injury application in respect to any alleged physical injuries sustained on 28 February 2008 by operation of s 134AB(21) of the Act.”[38]
The relevant legislation
21 Section 134AB of the Act reads relevantly as follows:
“(1) A worker who is ... or may be, entitled to compensation in respect of an injury arising out of, 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 cover any damages for pecuniary loss except —
(i) in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with ss(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.
(2) 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.
(3) Subject to subsection (4A), 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.
(4) Subject to subsection (4A), a worker may only make an application—
(a) if subsection (3)(a) applies, after the worker—
(i) has advised the Authority or self-insurer under section 104B(6B) or 104B(7B) that he or she accepts the determinations of degree of impairment; or
(ii) has received the advice of the Authority or self-insurer under section 104B(10); or
(b) if subsection (3)(b) applies—
(i) after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred; or
(ii) if an application had been made under section 104B as in force before the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004, subject to sections 104B(21), 104B(22) and 104B(23).
(4A) ...
(5) An application under subsection (4) must—
(a) be in a form approved by the Authority; and
(b) be accompanied by an authority in a form approved by the Authority, signed by the worker, authorising the release of medical information to the Authority or a self-insurer relevant to the application; and
(c) be accompanied by—
(i) a copy of all medical reports; and
(ii) affidavits attesting to other material—
existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings.
(5AA) ...
(5A) ...
(6) ...
(7) The Authority or self-insurer must, within 120 days (or such other period as may be specified in directions made under section 134AF) of receiving the application, advise the worker in writing—
(a) that the worker is deemed to have a serious injury; or
(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under subsection (16)(a).
(8) ...
(9) If the Authority or self-insurer fails to advise the worker in writing within the period referred to in subsection (7) as required by subsection (7), the worker is deemed to have suffered a serious injury.
(10) ...
(11) ...
(12) ...
(13) ...
(14) ...
(15) If the assessment under section 104B made before an application under subsection (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
(16) If the assessment under section 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 or self-insurer—
(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, other than the Magistrates’ Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.
(17) ...
(18) ...
(19) For the purposes of subsection (16)(b)—
(a) a court, other than the Magistrates’ Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;
(b) ...
(19A) Any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of damages brought in accordance with this section which is heard and determined on and from the commencement of section 57(3) of the Accident Compensation Amendment Act 2010.
(20) ...
(20A) ...
(20B) ...
(21) If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.
(21A) ...
(22) ...
(23) ...
(24) ...
(25) ...
(26) ...
(27) ...
(28) ...
(28A) ...
(28B) ...
(29) ...
(30) ...
(31) ...
(32) ...
(33) ...
(34) ...
(35) ...
(36) ...
(36A) ...
(36B) ...
(36C) ...
(37) In this section—
...
serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
(38) ... .”
22 In Maurice Blackburn Cashman v Fiona Helen Brown,[39] the High Court noted that s134AB of the Act provides for five different ways in which the existence of a serious injury can be established:
(a) Pursuant to ss(15), if the assessment made under s104B of the degree of impairment of the worker as a result of the injury is 30 per cent or more, the injury is deemed to be a “serious injury”;
(b) Pursuant to ss(7)(a), the Authority advising a worker as a result of a determination under s104(B) of the degree of the impairment of the worker, “that the worker is deemed to have a serious injury”; or
(c) Pursuant to ss(7)(b), by the Authority issuing a certificate under s134AB(16)(a) that it was “satisfied the injury is a serious injury”; or
(d) Pursuant to ss(9), which provides that in the event the Authority fails to advise the worker within a fixed time of its decision in relation to an application where the worker had a serious injury, the worker would be deemed to have a “serious injury”; or
(e) Under ss(19)(a) the Court, other than a Magistrates’ Court, on application of the worker being “satisfied on the balance of probabilities that the injury is a serious injury”. In the case under ss(19)(a), the Court would give leave, under ss(16)(b) to the worker to bring a proceeding.[40]
23 Clearly enough, the “gateway” accessed by the plaintiff in this proceeding was that leave was given pursuant to s134AB(16)(b) of the Act to bring a proceeding on the basis that the Court was “satisfied on the balance of probabilities that the injury is a serious injury”.
24 I refer to the Court of Appeal decision of Georgopoulos v Silaforts Painting Pty Ltd & Ors,[41] wherein the issue was raised:
“... Is a worker confined, in a claim for damages at common law in respect of a workplace injury, to a specific injury or injuries certified by the Victorian WorkCover Authority (‘the authority’) to be a serious injury or are the serious injury provisions simply a gateway to a claim for damages for the total injury suffered in compensable circumstances?”[42]
25 In answer to such issue, the Court of Appeal stated:
“In our view, the effect of s 134AB(1) and (2) of the Act is that a worker may recover damages in respect of all the components of an injury which is compensable pursuant to s 82(1) of the Act if the compensable injury results in consequential impairment of the kind defined as serious injury by the Act.We reach this conclusion for three fundamental reasons. First, s 134AB couples the notion of compensable injury, which arises out of s 82(1) of the Act, with the notion of consequential impairment, defined as serious injury by s 134AB(37) of the Act. A worker may recover damages in respect of ‘an injury’ which constitutes a compensable injury, but the compensable injury must be a serious injury in that it must result in impairment sufficient to constitute serious injury as that concept is defined.
Secondly, this construction results in a harmonious scheme in terms of the associated and consequential provisions of s 134AB. Conversely, there are a series of provisions in s 134AB which are problematic if s 134AB(2) is understood to require that each component of a compensable injury in respect of which a worker may recover damages must itself constitute a serious injury.
Thirdly, the legislative history of the provisions supports the view that Parliament intended the construction we prefer.”[43]
(my emphasis)
26 When interpreting the relevant parts of s134AB of the Act, the Court stated it was necessary to read the Act as a whole (rather than just ss(1) and ss(2)) and examine the broader context of s134AB.
27 The Court noted that s134AB(1) first defines the class of persons to whom it applies by reference to those who 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. The Court further noted that the reference was back to s82(1) of the Act.
28 Section 82(1) of the Act reads:
“If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
29 Furthermore “injury” is defined in general inclusive terms by s5 of the Act.
30 Section 5 defines “injury” to be:
“‘injury’ means any physical or mental injury and, without limiting the generality of that definition, includes—(a) industrial deafness; and
(b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); and
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
31 The Court also noted that the potential breadth of the notion of “an injury” under s82 is controlled by the causal connection stipulated and is relevantly, any physical or mental injury caused to a worker arising out of or in the course of any employment. In this sense, “an injury” is a compendious term and thus an injury in this “comprehensive sense” is commonly described as a “compensable injury”.[44]
32 The Court of Appeal also referred to Barwon Spinners Pty Ltd & Ors v Podolak,[45] wherein it was stated:
“With that established, subs (1) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including subs (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 subs (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 subs (2) which, though essential, is a part of the overall scheme: it does not exist independently of it.”[46](My emphasis)
Various authorities referred to by the parties
33 Each of the parties referred to one or more of the following decisions:
(a) Brambles Ltd v Wail,[47] a decision of the Court of Appeal that involved consideration of s135A of the Act which applied to work injuries occurring before 12 November 1997,[48] whereas s134AB applies to work injuries occurring and on after 20 October 1999.[49] Although s135A is considerably different in various respects to s134AB, the provisions which permit a court to entertain a worker’s common law claim are expressed in virtually the same terms.
In this case, 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”. At the hearing of the damages trial, Counsel for Mr Wail 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 make an amendment to the date and such leave was challenged on appeal, it being alleged 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 JJA) after examining the legislative structure of s135A, stated, in part:
“The appellant contends, under cover of this ground, that the judge was in error in failing to ‘strike out’ or dismiss Wail's claim following the amendment made at the outset of the hearing to allege that the injury, for which Wail was seeking compensation, occurred on 16 July 1993 and not on 9 August 1993 which was the date specified by the judge who determined the application for leave pursuant to s135A of the Accident Compensation Act. 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 s135A. 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 (s135A(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 subs(19) as ‘serious long-term impairment or loss of a body function’. Again relevantly for present purposes subs(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’ (subs(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 s135A(19).Notwithstanding what we have said, the appellant here contends that because the order made by the judge, who heard the leave application, records that leave was given to Wail to bring proceedings for a serious injury ‘based on the cause of action said to have arisen on 9 August 1993’, the judge at trial was bound to terminate those proceedings as soon as application was made, and leave was given, to amend the date of the occurrence of injury to 26 July 1993. It was further contended that the judge was not permitted to look at the transcript of proceedings of the "leave application" for the purposes of ruling upon the application.
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’. ... .”[50]
(my emphasis)
(b) Ronchi v Alcoa Portland Aluminium Pty Ltd,[51] a decision of the Supreme Court that also involved consideration of s135A of the Act. In that matter, Mr Ronchi was given leave to bring proceedings in respect of injuries suffered by him in the course of his employment from 1 December 1992 to 12 December 1997.
In the damages claim, the defendant pleaded that the plaintiff was only entitled to bring proceedings in respect of injuries allegedly sustained when he was driving a hauler on 21 September 1995.
Consistent with what had been said in Brambles, the trial judge at the damages hearing examined both the trial judge’s reasons (at the serious injury hearing) and the material before him so as to determine the true nature of the injury for which leave was granted. The trial judge at the damages hearing concluded that:
“It is apparent that the injury for which leave to proceed is granted was injury to the lower back suffered during ongoing employment in 1995.”
The trial judge at the damages claim then directed that the plaintiff’s Statement of Claim be amended in accordance with his Ruling that the “serious injury” extended from 1995 onwards.
(c) Harvey v Methodist Ladies College,[52] a decision of the Supreme Court that involved the operation of s134AB of the Act. At the hearing involving “serious injury”, leave was granted 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. At the damages trial, the plaintiff pleaded injury over the course of her employment from 20 October 1999 to 25 October 2001. By way of its Defence, the defendant asserted that the plaintiff was only entitled to bring the claim for damages in respect to injury on or about the 25 October 2001 and not in respect of any other injury.
Beach J permitted the plaintiff to rely on the allegations in the Statement of Claim, and went on to state:
“As the authorities to which I have already referred show,[53] 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 ... .”[54](my emphasis)
(d) Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[55] a decision of the Supreme Court that involved consideration of s134AB of the Act. In that matter, Mr Kruisselbrink sued his employer, Nationwide Maintenance Services Pty Ltd, for injuries that he allegedly sustained in the course of his employment between 2000 and 2005. In a not dissimilar way to the present proceeding, Counsel for the parties requested the trial Judge to determine questions of amendments to both his Statement of Claim and the defence.
As described by the trial Judge (J Forrest J), the “nub of the argument” for each side centred upon what constraints (if any) were imposed upon Mr Kruisselbrink’s common law claim by the terms of a serious injury certificate issued by the Victorian WorkCover Authority pursuant to s134AB(16)(a). Again, as pointed out by the trial Judge, if the defendant’s arguments succeeded, then the claim by Mr Kruisselbrink was limited to one incident at work in May 2005, whereas Mr Kruisselbrink succeeded in securing the amendments he could assert “that his employment as a continuum, including two separate incidents, forms the basis for his common law claim”. The undisputed factual background was that Mr Kruisselbrink commenced employment with the defendant as a cleaner in 2000.
Earlier, Mr Kruisselbrink had been granted a “serious injury” certificate. The certificate was dated 9 February 2008 and read 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.[56]
(The emphasis is mine.)
Forrest J reviewed various parts of Mr Krusselbrink’s s134AB application, including the Form A Application, an affidavit sworn by him on 10 April 2008, a Draft Statement of Claim, a series of medical reports, an engineer’s report and the various Claim Forms.
After reviewing such material, Forrest J found that such material was consistent with nominated injuries alleged in the Statement of Claim. In passing, he also noted that on the material before him, the serious injury certificate could not have been issued on 9 February 2008, as the s134AB application was not filed by Mr Kruisselbrink until April 2008. Furthermore, the date of injury asserted in the certificate, being 5 May 2005, was, at least on the material, incorrect, as the plaintiff had gone off work on that day.
Forrest J reviewed the various preceding authorities, and stated:
“The approach of Beach J is consistent with 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 (ie 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 there is no basis for linking the serious injury to the work activities.”[57]
(e) Forrest J set out what he refers to as principles drawn from the threads of the various authorities referred to in his Judgment. Of course, it must be borne in mind that Forrest J was dealing with circumstances where a certificate had been granted by the Authority. Forrest J states:
“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. ... .” [58]
(my emphasis)
34 I again refer to the decision of Georgopoulos, wherein the Court of Appeal noted that the decisions of Kruisselbrink,[59] Ronchi[60] and Harvey[61] were not determinative of the issue before the Court in Georgopoulos. Rather, “[t]hose cases concern the parameters of the compensable accident or process underlying the relevant claim and/or whether the particular worker was seeking to amend to recover damages for an injury not arising out of the alleged event that gave rise to the relevant injury”.[62]
Conclusions
35 On 18 May 2012, Judge Misso granted the plaintiff “leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity arising out of her employment with the defendant”.
36 It was incumbent for the plaintiff to identify, for the purposes of s134AB(1), the “compensable injury” that is referrable to employment on or after 20 October 1999 which is alleged to be the “serious injury”. In the circumstances of this matter, the plaintiff, through her Counsel, identified a psychiatric injury suffered as a result of the way she perceived she was treated by the defendant following her return to work.
37 The plaintiff relied on paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act. It was incumbent upon Judge Misso to be satisfied that, on the balance of probabilities, the compensable injury was a “serious injury” within the meaning of paragraph (c).
38 In the circumstances of this matter, Judge Misso found that the plaintiff had suffered a “compensable psychiatric injury” (relying on Federal Broom Co Pty Ltd v Semlitch)[63] which she suffered as a result of the way in which she perceived she was treated by the defendant following her return to work. Judge Misso was satisfied that such compensable injury was a “serious injury”.
39 The finding of compensable injury and serious injury by Judge Misso is consistent with the way that the case was put by counsel for the plaintiff at the serious injury application. Counsel for the plaintiff made it quite clear how the claim was put for “serious injury”. Indeed, although not a matter for determination, it may well have been that there was perceived a distinct forensic advantage by putting the case in such way and avoiding (as was hinted by counsel for the plaintiff) any issues arising from disentanglement of physical and psychiatric injury resulting from the fall from the ladder.
40 The authorities make clear that it is open to a court to peruse the various documents available to the parties at the time of the serious injury application in order to ascertain the extent of any finding of “serious injury”. Indeed, as I have already recorded, there was evidence available at the serious injury application to support the proposition that the fall from the ladder gave rise to some psychiatric consequences. Furthermore, the grant of leave given by Judge Misso in his judgment (there does not appear to be an authenticated order) is not limited in any way. However, such a perusal also makes clear, in my view, that the grant of serious injury was limited to a psychiatric condition resulting from the way the plaintiff perceived she was treated by the defendant following her return to work.
41 Accordingly, in my view, the plaintiff is limited to pleading causes of action in alleged negligence and or breach of some statutory duty in relation to employment after the plaintiff resumed work on 26 May 2008. In particular, the plaintiff is not entitled to allege that she suffered a compensable injury on 28 February 2008 which was a cause of her present alleged psychiatric state. The conduct of those acting for the plaintiff in now seeking to rely on such injury in a sense smacks of approbation and reprobation.
42 Again, in my view, it is not to the point that potentially a different result may have occurred if the plaintiff sought to access s134AB through a different “gateway”. In the circumstances of this matter, she accessed it through seeking a grant from a Court to bring common law proceedings on the basis of a finding of “serious injury”. A review of the material available to the Court at that time, including the transcript and the judgment, clearly points to what was found to be a “serious injury” and accordingly, the limits of such serious injury.
43 I also refer again to Kruisselbrink,[64] wherein Forrest J stated:
“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.My researches turned up decisions of the County Court relating to this point, namely:
Edwards (Judge O’Neill 11/12/2007)
Baconic (Judge Stott 20/12/2006)
Arendt (Judge Wodak 12/11/2001)
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.”[65]
44 In what are perhaps the strange circumstances of this matter, Counsel for the plaintiff expressly put the claim for serious injury in the way which was accepted by the judge. What was sought by the plaintiff was ultimately ordered by the judge after a consideration of all of the evidence.
45 Given my Ruling, I will hear from the parties as to what amendments should be made to the Statement of Claim.
- - -
[1] The parties in this matter obviously consented to me perusing the documents contained in the Joint Court Book (“JCB”). I also note that the authorities: Brambles Ltd v Wail [2002] VSCA 150; [2002] 5 VR 169, at paragraph [51], and Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260, at paragraph [63(5)], supports such an approach
[2] Born October 1972
[3] See Form A Application at page 1 JCB
[4] See Statement of Claim at page 11 JCB
[5] See Amended Draft Statement of Claim at page 16 JCB
[6] See Particulars of Injury dated 27 June 2011 at page 34 JCB
[7] See Amended Particulars of Injury at page 35 JCB
[8] See Amended Originating Motion at pages 26-29 JCB
[9] See Judgment of his Honour Judge Misso: Kaltsis v Ice Design Pty Ltd [2012] VCC 623 at page 292 JCB
[10] See pages 38-61 JCB
[11] See pages 62-66 JCB
[12] See pages 67-70 JCB
[13] See pages 71-74 JCB
[14] See pages 75-79 JCB
[15] See pages 80-81 JCB
[16] See page 30 JCB
[17] See paragraphs 5 to 8 at pages 40-41 JCB
[18] See paragraph 9 of the first affidavit at page 41 JCB
[19] See paragraph 13 of the first affidavit at page 42 JCB
[20] See paragraph 37 of the first affidavit at page 47 JCB
[21] See page 84 JCB
[22] See page 167 JCB
[23] Different counsel appeared for the plaintiff at that time
[24] See page 252, line 28 – page 253, line 10 JCB
[25] See Judgment at page 298, paragraph 11 JCB
[26] See Judgment at page 299 JCB
[27] [1964] HCA 34; (1964) 110 CLR 626
[28] Paragraph 52 of Judgment at page 310 JCB
[29] See pages 327–333 JCB
[30] See pages 339–340 JCB
[31] Reference is made to Brambles Ltd v Wail (op cit) at paragraph[18]
[32] Reference is made to Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647 at 658
[33] Reference is made to Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 at paragraph [69]
[34] Reference is made to the deeming provisions in s134AB(15) of the Act, by the Authority issuing a certificate under s134AB(16)(a) or where the Authority failed to advise the worker within a specified time whether it will grant a certificate
[35] Reference is made to Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [63(5)]
[36] Reference is made to medical evidence which did connect the plaintiff’s psychiatric injury with the fall from the ladder
[37] Reference is made to O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [85]
[38] See pages 2 and 3 of the Plaintiff’s Outline of Submissions
[39] Maurice Blackburn Cashman (Op cit)
[40] Maurice Blackman Cashman v Brown (op cit) at paragraphs [21] – [22]
[42] See Georgopoulos (op cit) at paragraph [2]
[43] See Georgopoulos (op cit) at paragraphs [3] – [6]
[44] Reference was also made to AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309 at paragraphs [8] and [30]
[45] [2005] VSCA 33; (2005) 14 VR 622
[46] See Barwon Spinners Pty Ltd (op cit) at paragraph [13]
[47] Op cit
[48] See s135A(1) of the Act
[49] See s134AB(1) of the Act
[50] Brambles Ltd v Wail (op cit) at paragraphs [18]–[21]
[53] The cases include Brambles Ltd v Wail (op cit); Ronchi v Alcoa Portland Aluminium Pty Ltd (op cit) and O’Neill v TD Williamson Australia Pty Ltd (op cit)
[54] See Harvey v Methodist Ladies College (op cit) at paragraph [11]
[55] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit)
[56] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [38]
[57] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [56]
[58] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraph [63]
[59] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit)
[60] Ronchi v Alcoa Portland Aluminium Pty Ltd (op cit)
[61] Harvey v Methodist Ladies College (op cit)
[62] Georgopoulos v Silaforts Painting Pty Ltd (op cit) at paragraph [113]
[63] Federal Broom Co Pty Ltd v Semlitch (op cit)
[64] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit)
[65] Kruisselbrink v Nationwide Maintenance Services Pty Ltd (op cit) at paragraphs [56]-[57]
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