Anton Miloloza v Commonwealth of Australia [1992] ACTSC 85 (28 August 1992)

SUPREME COURT OF THE ACT

ANTON MILOLOZA v. COMMONWEALTH OF AUSTRALIA
S.C. No. 806 of 1988
Pleadings

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Pleadings - Particulars - Embarrassing - Negligence of employer - Lifting Case - Causation of injury - No issue of principle.

HEARING

CANBERRA
28:8:1992

Counsel for the
Applicant/Defendant: G. Richardson

Instructing Solicitors: Australian Government
Solicitor

Counsel for the

Respondent/Plaintiff: G. Lunney

Instructing Solicitors: Joseph Tallarita

ORDER

The Court orders that:

1. The application by Notice of Motion dated 10 July 1992 be dismissed.

DECISION

This is an application for an order that certain particulars supplied by the plaintiff be struck out or, in the alternative, that the action be stayed.

2. The Writ with Statement of Claim indorsed was issued on 27 June 1988. The plaintiff claims damages from his employer for an injury to his back which he claims was the result of the defendant's negligence.

3. Paragraph 1 alleged that:

"1. At all material times the defendant employed
the plaintiff as a litho-machinist assistant.

4. Paragraph 2 of the Statement of Claim reads as follows:

"2. On or about 9 August 1984 the plaintiff was
employed by the defendant in an office of the
defendants premises and whilst so employed and in the
course of such employment was required to stack paper
into printing machines. Whilst stacking a heavy load
of paper into a machine the plaintiff felt a severe
pain in his lower back and as a consequence of which
the plaintiff suffered injuries loss and damage.

5. Paragraphs 3 and 4 purport to set out, in the usual drearily conventional and useless formulas, aspects of the duty of the defendant and breaches of that duty. They amount to no more than broad statements of the law, without condescending to any meaningful particulars that might give some hint of what this case is actually about.

6. Paragraph 5 alleges that "the plaintiff was injured as a result of the said breaches individually or collectively". There are then set out particulars (a) to (j), purporting to be particulars of that allegation. Of course they are not. They are mainly simple repetitions of the meaningless shibboleths already set out in the previous two paragraphs.

7. The only items that have any useful content for the purposes of this action are those numbered (h), (i) and (j). They may be read as proper particulars of the allegation of breach of duty which is implied rather than stated in paragraph 5. They are as follows:

"(h) Failing to provide mechanical aids to assist
in the loading of printing machines.
(i) Failing to properly instruct the plaintiff in
correct lifting and handling techniques.
(j) Permitting the plaintiff to perform lifting tasks
exceeding safe lifting standards.

8. The file does not disclose when the Writ was served. The defendant appeared on 5 April 1989, and by letter dated 7 April 1989 sought further and better particulars of the plaintiff's claim.

9. The response dated 3 July 1989 from the plaintiff's solicitors set out the following items of information, amongst others.

1. The period referred to as "at all material
times" in paragraph 1 was from 14 March 1978 to 9
August 1984.
2. The time at which the plaintiff was injured was at
approximately 9.00 am.
3. The location of the plaintiff's work place at the
time of his alleged injury was "Press room, Australian
Government Publishing Service, Wentworth Avenue
Kingston."
4. The exact circumstances giving rise to the alleged
injuries were, "The plaintiff was lifting a heavy load
of paper into a printing machine when he felt severe
pain in his lower back".
5. The basis on which it was alleged that the load of
paper to be stacked was a "heavy" load, and the
estimate of weight of the load, was as follows, "The
plaintiff was required to load paper weighing between,
approximately, 5-20 kilos into printing machines on a
continual basis. The load of paper lifted by the
plaintiff at the time of injury weighed approximately
20 kilograms."
6. The failure to take reasonable precautions, and the
exposing of the plaintiff to risk, was that the
plaintiff was required to stack paper into printing
machines without being given adequate instruction as to
correct lifting and handling techniques and was not
provided with mechanical aids to assist in the loading
of the printing machines.
7. The place of work was not safe in that it did not
have in it mechanical aids to assist in the loading of
printing machines.
8. The system of work was unsafe in that the plaintiff
was required to perform lifting tasks exceeding safe
lifting standards.
9. The failure to provide proper and suitable equipment
was a failure to provide equipment that would have
limited the frequency with which the plaintiff was
required to bend in stacking paper into printing machines.
10. The failure to supervise properly was a failure to
instruct the plaintiff about correct lifting and
handling techniques or to provide an alternative method
of stacking paper.

10. A Certificate of Readiness was filed dated 12 August 1991, in which both solicitors certified that the action was ready for trial. A listing hearing was held on 19 February 1992, at which there seems to have been some suggestion that the plaintiff's case was that the injury was caused by repetitive bending and lifting.

11. The solicitors for the defendant wrote on 2 March 1992 asking whether and in what form the plaintiff proposed to amend the statement of claim. The plaintiff's solicitors responded on 24 March 1992 that in their view the pleading did not need to be amended.

12. On 7 April 1992 the solicitors for the plaintiff served on the solicitors for the defendant a copy of a report dated 1 April 1992 by Dr Neil Adams, who claims to be an expert of the type that he describes as "an ergonomist". That report raised the possibility that the lifting tasks recalled by the plaintiff as being the main component of his work over a period before the date of the accident could well have caused or contributed to the development of back injury.

13. By letter dated 11 May 1992 the defendant's solicitor enquired of the plaintiff's solicitor:

"Would you please indicate, as soon as possible,
whether the cause of the injury sued on is alleged to be:
(a) The stacking of the one heavy load of paper
referred to in paragraph 2 of the Statement of
claim, or
(b) Repetitive bending and lifting of stacks of paper
on one day, being the day referred to in
paragraph 2 of the Statement of Claim as the day
on which the plaintiff felt the pain, or
(c) Repetitive bending and lifting of stacks of paper
over a period of time of more than one day
(specifying the period), the period concluding on
the day referred to in paragraph 2 of the
Statement of Claim as the day on which the
plaintiff felt the pain, or
(d) Some other cause."

14. The letter concluded:

"Further, if the answer is (b), (c) or (d) in my
opinion the Statement of Claim does not disclose this.
If application is made to amend the Statement of Claim,
it will be opposed as constituting a fresh cause of
action, now barred by the Limitation Act (ACT) and
s.44(1) of the Commonwealth Employees' Rehabilitation
and Compensation Act 1988 (Clth). If application is not
made to amend the Statement of Claim, then the defendant
will apply for an order striking out the Statement of
Claim or particulars or alternatively for a stay."

15. The plaintiff's solicitor replied, by letter dated 9 June 1988:

"The cause of the injury sued on by the plaintiff
is as set out in paragraph c. of your letter.
Particulars of bending, lifting and frequency are
particularised in the report of Dr Adams dated
1 April 1992.
The plaintiff does not intend to amend his Statement of Claim."

16. Further correspondence produced the following reply from the plaintiff's solicitor, in a letter dated 30 June 1992:

"Particulars of the alleged bending, lifting and
frequency have in my opinion already been provided.
However, I repeat between 14 March 1978 to 9 August
1984 the plaintiff was required to bend forward and
turn to the left and the right to stack paper and load
printing machines. The plaintiff was required to lift
stacks of paper between 5 to 20 kilograms at a rate of
at least 2 stacks per minute to 8 times per minute."

17. The Notice of Motion was filed on 10 July 1992. It provoked a response dated 7 August 1992 which included the following:

"The certificate of readiness in this matter was
filed on 19 August 1991. At that time any formal
particulars had already been sought and supplied. It
is my respectful contention that the subsequent
correspondence was in an effort to establish to what
extent our client could rely on the expert report of Dr
Adams.
However, it has been pointed out to me that in my
letter of 9 June last, I neglected to state
specifically that the plaintiff still relied on the
"stacking" referred to in paragraph 2 of the statement
of claim and the answers to requests for particulars of
3 July 1989, particularly answers 8(a)-(e) and 9."

The answers 8(a)-(e) and 9 are the matters summarised by me in items 6 to 10 above.

18. The essential point of the objection by the defendant is that the particulars now supplied are embarrassing, as they are inconsistent with the allegations made in the pleadings.

19. Formulary pleading was abolished by the Judicature Acts. What a pleading must now do is allege facts. The facts must be material facts, and, in the context of an action on the case for negligence, those material facts must be such as, if proved, would give rise to a duty in the defendant to take reasonable care for the safety of the plaintiff; facts which constitute a breach or breaches of that duty; and facts amounting to damage caused to the plaintiff as a result of that breach or those breaches.

20. There is no set or prescribed pattern for setting out those allegations of fact. But one of the principal purposes of the pleading is to inform the opponent of the case that is alleged by the pleader against the opponent. The greater the specificity and particularity with which the several allegations of fact are made the better does the pleading meet that purpose of the pleading. That is the reason for my criticisms of this Statement of Claim. But those criticisms in themselves do not amount to a finding that the pleading is defective in itself, either as not disclosing a cause of action or as being embarrassing.

21. It must also be read fairly, as a whole, and as supplemented by the particulars supplied in the letter dated 3 July 1989, from which the plaintiff's solicitors expressly do not resile.

22. Read in that way, the pleading discloses the following allegations.

1. From 14 March 1978 to 9 August 1984 the
defendant employed the plaintiff to work as a
litho-machinist assistant. That allegation
imports a duty in the defendant to exercise
reasonable care for the safety of the plaintiff.
2. During that period of employment the defendant
failed to take reasonable care for the safety of the
plaintiff in the following respects:
(a) It required him to stack paper into printing
machines without giving him adequate instruction
about correct lifting and handling techniques.
(b) It required him to stack paper into printing
machines without providing mechanical aids to
assist in the loading of the printing machines.
(c) It required him to perform lifting tasks, namely
stacking the paper into printing machines, which
lifting tasks exceeded safe lifting standards.
(d) It failed to provide equipment that would have
limited the frequency with which the plaintiff was
required to bend while stacking paper into printing
machines.
If those facts were proved it would be a question of
fact for the tribunal of fact whether they amounted to
a breach of the duty of care that the defendant owed to
the plaintiff.
3. As a result of those breaches the plaintiff's back
was injured, when on 9 August 1984 in the course of his
employment he was stacking a 20 kilogram load of paper
into a machine, and felt a severe pain in his lower back.

That constitutes damage, and alleges causation.

23. The grammatical arrangement of the pleading may be rightly criticised, and the phrase, "as a consequence of which" in paragraph 2 is ambiguous. It is possible to construe that phrase in a grammatical way so that it does not seem to be ambiguous, but I do not think that a document such as the Statement of Claim in this case is to be analysed with such meticulous particularity.

24. It seems to me that on a fair reading of the document as a whole together with the further particulars supplied later, the allegations summarised above are contained in it, and easily derived from it by any lawyer accustomed to the issues that arise in employment negligence cases.

25. Read in such a way I do not think that it is inconsistent with the document to allege that the causal connection between the breaches of the duty and the suffering of damage to the back which became evident to the plaintiff on 9 August 1984 is to be demonstrated as resulting from a series of events that took place over a period of time rather than from the single instance of lifting on 9 August 1984.

26. The pleading as particularised is capable of encompassing both allegations about causation. What the defendant is entitled to is to know whether both are relied upon. It now has its answer, "Yes, both are relied upon."

27. There can be no doubt whatsoever in the minds of the defendant's advisers about the case that it will have to meet. It is a wider case than the one it faced when it received the particulars dated 3 July 1989. But it is not a different cause of action. The facts giving rise to the duty remain unchanged. The facts said to constitute the breach remain unchanged. The damage suffered, namely, an injured back, remains unchanged. All that is changed is that there is to be propounded an additional, alternative, hypothesis to demonstrate the way in which the breaches caused the harm which became apparent on 9 August 1984. That additional hypothesis is not inconsistent with the pleading as formerly particularised. It is not therefore embarrassing. I dismiss the application.

28. It is however obvious that the defendant is entitled to time to make further investigations about the hypothesis. It is obvious that the case is not ready for trial. The Certificate of Readiness must therefore be disregarded, and a listing hearing should not be fixed until after the filing of a fresh certificate of readiness.

29. I will hear submissions from counsel on the question of costs.