Bott v GIO Workers Compensation

Civil Liability Act 2002 LEGISLATION CITED : Limitation Act 1969 Uniform Civil Procedure Rules 2005

CASES CITED : Blair v Curran [1939] HCA 23; 62 CLR 464 General Steel Industries Inc v Commissioner for Railways (NSW) [1954] HCA 69; 112 CLR 125

PARTIES : David Charles Bott (Plaintiff) GIO Workers Compensation (Defendant)

in person (Plaintiff) COUNSEL : D J Hooke (Defendant) P R Sternberg (WorkCover Authority NSW)

N/A (Plaintiff) SOLICITORS : Hicksons (Defendant) I V Knight, Crown Solicitor (WorkCover Authority NSW)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

20484/06 David Charles Bott v GIO Workers Compensation

(i) Defendant's notice of motion for summary judgment; (ii) Plaintiff's notice of motion for amendment and various additional orders 1 HER HONOUR: The substantive proceedings were commenced by statement of claim filed by the plaintiff on 27 November 2006. He names "GIO Workers Compensation" as the only defendant. The whole of the pleadings contained therein are as follows: "1. It is alleged that the between 19 July 2000, and 27 November 2003, GIO Workers Compensation, the plaintiff's insurer, breached its duty of care to the injured worker.

It is alleged that the insurer, once the employer had dismissed the plaintiff, and GIO, the insurer accepted liability, they owed the plaintiff a duty of care.

It is alleged that the insurer, through it's actions, did not fulfil this duty of care.

It is alleged that the insurer hindered medical diagnosis and treatment, by denying scans and treatments, for excessive periods, causing and/or exacerbating the plaintiff's injuries and medical conditions.

It is alleged that the insurer improperly denied liability, stopped the plaintiff's medical treatment further exacerbating the plaintiff's medical condition."

The relief claimed is identified as "unspecified damages". 2 On 11 May 2007 the defendant filed a notice of motion seeking, in the alternative, orders that the proceedings be struck out in whole or in part pursuant to UCPR (2005) 4.15(1); that the proceedings be struck out in whole or in part pursuant to UCPR 14.28(1)(a) or r 14.28(1)(c); that the proceedings be dismissed generally or in relation to the claim against the defendant pursuant to r 13.4(1); and for orders for costs. 3 On 21 May 2007 the plaintiff filed a notice of motion seeking orders framed as follows: "1. That the defendant's motion to strike, be denied, that the matter be pushed forward for expedient hearing.

2. That the Court grant leave to bring the WorkCover Authority of NSW as a second defendant.

3. That matters pertaining to past involvement with intelligence agencies, be excluded from these proceedings.

4. That matters and evidence from Court of Appeal Case against former employer, be excluded, except common reports and affidavits, listed in pleadings, or particulars."

By an Amended Notice of Motion filed on 3 July 2007 the plaintiff claims the same four orders, and three additional orders, as follows: "5. That due to the entry of judgment at first instance, by the second defendant into evidence and Court of Appeal paperwork entered by the first defendant that the Court Grant (sic) leave to hear the evidence of Carmen Mavroudis, Greg Arnott JP and accept the affidavit of Hilal Habbous, regarding circumstances and actions of both the first defendant, and their Client.

That if the Court accepts such evidence regarding the documents entered into evidence, that the Court make a directed judgment that limits further argument to damages and liability.

That due to its pertinence to decisions made, or under consideration, that copies of these Affidavits be forwarded to both the High Court, and Justice Rein (sic)." 4 Both notices of motion were heard concurrently. Exhibit A in that hearing was the Amended Statement of Claim that the plaintiff proposes, if granted leave to file. There, the relief claimed is expanded to include loss of income, loss of future earnings and opportunities, costs of future medical treatment, medication and domestic assistance; past and future out of pocket expenses; special damages for pain, suffering and lost opportunities; legal and filing costs; costs of relocation. He also proposes to add a second defendant, identified as "The WorkCover Authority of NSW" ("WorkCover"). 5 To the original pleading the plaintiff proposes to add: "6. It is alleged that the WorkCover Authority was contacted on four separate occasions, and asked to intervene, instruct, investigate or medicate, but refused.

7. It is alleged that the WorkCover Authority should have investigated the accidents, but to this day have not conducted a thorough investigation.

It is alleged that the first defendant had an obligation to the second defendant, and they to myself, and their early intervention could have helped minimising my injury.

It is further alleged that, due to my circumstances, the first defendant, should only the same duty of care as if an employer, whilst in their care, as I was." 6 In order to understand the proceedings it is necessary that some history be recounted. In 2001 the plaintiff commenced proceedings in the District Court against Suttons Motors Pty Ltd trading as Suttons City Holden ("Suttons"). He alleged that, in June and July 2002, whilst he was employed by Suttons he sustained injuries in two separate accidents on 16 June and 11 July 2000. He alleged that each accident was caused by negligence on the part of Suttons, and claimed damages. 7 These proceedings came on for hearing before Rein DCJ between 31 May and 17 June 2004. The present defendant ("GIO Workers Compensation"), which indemnified Suttons against such claims, conducted the proceedings on its behalf. On 22 September 2004 Rein DCJ delivered a lengthy and considered judgment which culminated in verdict and judgment for Suttons, and an order that the plaintiff pay Suttons' costs of the proceedings. The judgment runs to 74 pages and outlines extensively the evidence that was called on behalf of the plaintiff and on behalf of Suttons. From this comprehensive judgment it is possible to understand with some clarity the nature of those proceedings. The salient findings of Rein DCJ are as follows: "138. I am not satisfied that what the plaintiff does and says to demonstrate conditions and symptoms is a reasonable guide to the existence of any conditions and symptoms of which he complains, whether that be that he has shrunk one and a half inches, can fit an orange or even a grapefruit into the depression on his skull, or has drop attacks which make him fall to the ground.

139. I am not satisfied on the balance of probabilities that the plaintiff suffered any significant head injury on 11 July 2000. It is not just that I prefer the evidence of Dr O'Sullivan over Dr Teychenne and that of Dr Millons over Dr Ellis for reasons I have explained, but I think the plaintiff's unreliability as a witness has been so positively demonstrated by the evidence both on the issue of liability but also of his claims in relation to his condition, that none of the conclusions supporting the existence of profound injury or sequelae can be reliable, if they are based in any measure on the reporting of the plaintiff.

140. It may well be that the plaintiff has some back cervical thoracic or lower spinal condition, but I am not satisfied, on the balance of probabilities, that any condition of which he complains can be attributed to a fall on 16 June 2000 or on 11 July 2000, or that any of the symptoms of which he complains are genuine."

Rein DCJ also made it plain that, wherever evidence of the plaintiff conflicted with evidence on behalf of Suttons, he accepted the evidence of the Suttons' witnesses: see, for example, para [50]. 8 The plaintiff filed an appeal to the Court of Appeal against this decision. On 7 December 2006, after a hearing on 8 September of that year, followed by additional written submissions, the Court of Appeal (Ipp and Tobias JJA and Young CJ in Eq) upheld an application made by Suttons to strike out the appeal (then contained in a third amended notice of appeal) and ordered the plaintiff to pay Suttons' costs. At the same time the court declined applications by the plaintiff for leave to lead new evidence and to file further submissions, and an application to file a fourth amended notice of appeal: Bott v Suttons Motors Australia Pty Ltd trading as Suttons City Holden [2006] NSWCA 307. 9 Although there was no direct evidence to this effect, I was told by the plaintiff, and it was accepted on behalf of the defendant, that he has filed an application for special leave to appeal to the High Court of Australia against this decision and that application has not yet been heard. 10 The plaintiff sought to support his amended notice of motion by two affidavits sworn by himself on 21 May 2007 and 3 July 2007; an affidavit of Hilal Habbous sworn 2 July 2007; an affidavit of Gregory Michael Arnott sworn 6 July 2007. He also tendered an affidavit of Amanda Leanne Bott (his daughter) sworn 6 July 2007, but this went to prove service of a subpoena on Ms Carmen Mavroudis and is no longer relevant. Objection was taken to all affidavits, on the grounds that they were irrelevant to the issue for determination. I admitted them on the express basis that I would determine relevance after hearing the argument and reading the material to which objection was not taken. 11 I do not propose to set out the whole of the content of the affidavits. Some extracts will provide the flavour. In his first affidavit (which, from its date, may be inferred to have been filed in response to the defendant's notice of motion), the plaintiff deposed, inter alia: "5. I had also mistaken dates of both service and conference, being faxed the defendant's notice of motion, along with a possible carcinoma diagnosis, aggravated my depression and I was unable to function properly, causing me to miss the last mention.

If specific matters or wording which the defendant finds contravenes the rules of the Honourable Court, I would be more than willing to amend any or all of the documentation to comply.

Whilst I understand the defendant may find the matters scandalous, I verily believe that they are neither, frivolous, or vexatious.

I firmly believe that I have sufficient evidence, to prove my claims to the Court, and I believe that much more than my needs depend on this claim going forward.

I am not only bringing this matter for myself, or indeed to remove my children from the poverty they exist within. I firmly believe this is a rare occasion the courts will have to show insurance giants that the practice of transferring injured workers to their payroles (sic) to avoid further liability, is totally unacceptable.

I also most firmly believe that it should not be the role of the Australian taxpayer, to be held responsible for the multimillion dollar rehabilitation and support of injured workers, who are insured by their employer, for exactly that purpose.

Whilst I believe that the employer should share some liability for the non-diagnosis and non-treatment of my injuries, I verily believe that the defendant played a far larger part, by preventing my doctor from diagnosing my injury for 18 months, and the resulting injuries from the many further falls.

22. In the prior case, knowing that I had grave fears for the safety of my family, if this were to be released, a six day hostile cross-examination, primarily centred on this subject, despite its relevance, had the desired effect of instilling abject fear.

…" 12 In his second affidavit the plaintiff appears to depose that he wishes to call a witness, Gregory Arnott, said to be formerly the General Manager of GIO Workers Compensation - the defendant. He appears to anticipate that Mr Arnott would give evidence that the plaintiff had been denied treatment and other concessions during the time that the defendant handled his claim against Suttons. He also envisages calling another witness, Hilal Habbous, said to be formerly an employee of Suttons, although not at the same time as the plaintiff. He appears to envisage that Mr Habbous would give evidence calling in question the findings of fact made by Rein DCJ. 13 He deposed, for example: "10. I vehemently believe that this evidence will not only contradict evidence given by the solely management witnesses in those proceedings, whose evidence his Honour 'had no reason to doubt' was not only incorrect, but should go a long way to proving that these solely management witnesses willingly perjured themselves to obtain that verdict. Knowing that without access to premises, I could not contradict them.

12. I also believe that this evidence would drastically compromise the affidavit of Carmen Mavroudis, put on the record by the defendant in those proceedings, and allowed to be excused from being cross-examined about such evidence.

It is my firm and unshakeable belief that my former employer's counsel, now joined in these proceedings, manufactured that statement to reflect the coinciding evidence, with little regard for the truth, by merely changing tenses of answers to avoid it actually being pure untruth …

I firmly believe that this is an opportunity for the Court to ascertain whether or not there has been a series of legal ploys, used to explicitly to attain a judgment in favour of the defendant with little or no regard to the truth, or the rule of law, regardless of the cost to the taxpayer, the injured worker, and indeed justice itself …" 14 Mr Arnott's affidavit contained, inter alia, the following: "5. I first met Mr Bott at the GIO premises at 66 Clarence Street, Sydney where Mr Bott was protesting the management of his workers compensation claim by GIO and his treatment by Suttons Motors …

6. At no stage did I believe that he did so with any intention of extorting settlement from GIO, as he continually asserted that the matter had to be heard by a court.

7. It was my understanding that Mr Bott undertook his protests for two reasons, those being the denial of liability by GIO for treatment, which he was entitled, or for the rights of injured workers.

8. I believe that Mr Bott was unable to use public transport due to his injuries and the GIO, on the advice of an expert consultant paid for a special driver's seat and harnesses to be fitted to be Mr Bott's motor vehicle to enable him to drive it.

…" 15 Mr Habbous' affidavit contained, inter alia, the following: "4. Mr Bott has made me aware that Suttons managers and employees testified in the compensation proceedings that keys and job cards were handed through the window for the pre-delivery workers.

5. Although they did try this method for a short time it is not true and was definitely not my experience, or that of my co-workers, if that was said, it is a blatant lie.

…" 16 Mr Habbous stated that if evidence contrary to his evidence had been given by Suttons employees: "… it would appear that these witnesses have lied under Oath, and I Stand by what I have said." 17 I set out this material at some length in an attempt (probably, at best, only partly successful) to make comprehensible what the plaintiff seeks to plead in his statement of claim. It demonstrates that, except in one respect, the objection on the ground of relevance was, in each case, well taken. 18 The amended statement of claim falls into two parts, neither really dependent upon the other. These are the claims made against the defendant, and the claims proposed to be made against WorkCover. The issues raised by the defendant's notice of motion can be dealt with separately from those raised by the plaintiff's notice of motion which is really concerned with his application to join WorkCover as second defendant, and purports to plead a case against WorkCover. 19 The passages from the affidavits I have extracted make it quite clear that the true purpose of the proceedings against the defendant is to re-litigate the factual issues found against the plaintiff by Rein DCJ. That was confirmed by the written and oral argument offered by the plaintiff. In the written submissions, for example, the plaintiff argued: "10. Whilst any financial settlement may depend on the proceedings currently before the High Court, I Submit that is imperative for the court to hear the evidence as soon as possible, not for the benefit of myself and my young family, but for the benefit of both; the hundreds, or thousands of injured workers sacked because of their injury and put off to their insurers to limit their liabilities, to the detriment of that worker and their families, and of course the taxpayer." 20 In oral submissions in reply to those of the defendant and WorkCover, the plaintiff said: "… I realise that any settlement in these issues would depend on the - any financial settlement of these issues would depend on the appeal in the High Court being successful because I - these were originally meant to be joindered (sic) and the original proceedings, the GIO wasn't named as a second defendant, but the case was taken from my control on the day of hearing. Now I believe that a joinder at a later date would be appropriate. I wouldn't have any objection to this matter being stopped until that other matter comes down from the High Court, but that I believe that they do have their own separate set of circumstances and it is a totally different case, despite - it's just that the evidence was intended for both cases to save the time and - of the court and all parties …" 21 There was a great deal more. Without wishing to be unkind, it is necessary to observe much of what the plaintiff has said, both in writing, and orally, is very difficult to comprehend and evidences disordered thinking in his approach to the issues raised by the litigation. However, it is, in my opinion, inescapable that the true purport of the present proceedings against the defendant is as a device to avoid the consequences of failure in the proceedings before Rein DCJ and the orders of the Court of Appeal, effectively terminating the appeal to that court. It makes no difference that the defendant was not a party to the proceedings before Rein DCJ; the issues - whether the plaintiff was injured as he alleged, and, if so, whether he sustained injury as he alleged - are entwined with (so far as can be discerned) what the plaintiff now seeks to litigate against the defendant. It is for that reason that he acknowledges that he cannot claim damages against the defendant unless and until the High Court reverses the order of the Court of Appeal. To that I would add that he would also have to be successful not only in having that appeal re-instated, but also determined in his favour. 22 The defendant has invoked a variety of rules as contained in the Uniform Civil Procedure Rules 2005. These are: "4.15(1) If any matter contained in a document on the court file is scandalous, frivolous, vexatious, irrelevant or oppressive, the court may order: (a) that the matter to be struck out of the document, or (b) that the document be placed in a sealed envelope on the court file, or (c) that the document be taken off the court file. …

13.4(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. … 14.28(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) … [and] (c) is otherwise an abuse of the process of the court. …"

The power provided by rr 13.4(1) and 14.28(1) are to be exercised in accordance with the principles stated in General Steel Industries Inc v Commissioner for Railways (NSW) [1954] HCA 69; 112 CLR 125. 23 I am satisfied that the proceedings against the defendant are frivolous and vexatious; that no reasonable cause of action is disclosed; and that the proceedings are an abuse of the process of the court. There is no prospect that the plaintiff could replead to make an arguable case. Accordingly, I order that those proceedings be dismissed generally. 24 That leaves the question of the plaintiff's application for leave to amend, by adding WorkCover as a defendant and pleading against it as set out above. It is difficult to understand exactly what the plaintiff seeks to plead against WorkCover. The best I can do, stretching the pleading in favour of the plaintiff as far is possible, is to conclude that he wishes to bring against WorkCover a claim that it owed him a duty of care analogous or identical to that owed to him by Suttons (as employer) while in its care (that is, in the care of WorkCover). It seems that the allegation is that WorkCover breached that duty by failing to investigate the plaintiff's claims of injury and to intervene in the relationship between himself and Suttons or its insurer the defendant. The plaintiff ought to be given leave to pursue his claim unless it is, by analogy with the principles stated in General Steel, so unarguable as to render leave to plead it futile. 25 WorkCover advanced four separate arguments against leave being granted to the plaintiff to commence proceedings against it. In part, reliance was placed upon the adverse findings of Rein DCJ concerning the plaintiff's asserted injury. Reference was made to the decision of the High Court in Blair v Curran [1939] HCA 23; 62 CLR 464, and particularly, the passage in the judgment of Dixon J (as he then was) as follows: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies . The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." (emphasis added) 26 In my opinion this passage does not avail WorkCover. The findings of Rein DCJ on which WorkCover seeks to rely do not constitute a res judicata (and WorkCover did not argue that they did); rather, it sought to rely on what it claimed was an issue estoppel. They merely establish that, in the proceedings before Rein DCJ, the plaintiff failed, as against Suttons, to prove either that the accidents were caused by negligence on the part of Suttons, or that the symptoms which he complained were genuine. Certainly, the findings create an issue estoppel as between the plaintiff and Suttons; but there is no reason to suppose that WorkCover is privy to those findings. Moreover, the conclusions were not framed in terms of findings of fact, whether negative or positive; they are presented in the language of proof (or absence of proof). While they would be sufficient to provide Suttons with a good defence to any subsequent claim against it by the plaintiff with respect of the same factual issues, they are not sufficient to provide WorkCover with a defence to a similar claim against it. As best as I can make out from what the plaintiff seeks to prove against WorkCover, as I have said, it is that WorkCover failed to intervene to ensure that Suttons (through the defendant) discharged its (post injury) duty to the plaintiff. 27 WorkCover has overstated the effect of the findings in a submission to the following effect: "The [plaintiff] is estopped from relying on accidents and injuries which were found not to have arisen and which now form the basis of a further claim. There was no accident or injury for the Authority to investigate."

This is more than is represented by the conclusion of Rein DCJ. 28 Secondly, WorkCover denies that it owed any duty of care to the applicant (even on the assumption that he did suffer the injuries he alleged). 29 Such an argument could only succeed on an application such as this if the claim sought to be brought by the plaintiff were so untenable that, if pleaded, it would result in summary dismissal. In this respect the well known principles stated in General Steel are again apposite. I would not refuse leave to the plaintiff to bring the proceedings against WorkCover on that basis. 30 The third argument presented on behalf of WorkCover concerned the application of the Civil Liability Act 2002. Counsel recognised that it must be inferred that what the plaintiff seeks to do is to plead a case in negligence against WorkCover. He further assumed (on less solid ground, in my opinion) that any such claim could only be brought under Pt 3 of that Act which appears under the heading "Mental Harm". WorkCover relied upon s 32 of the Civil Liability Act, which provides as follows: " 32 Mental harm - duty of care (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. …" 31 On behalf of WorkCover it was contended that it was not foreseeable that a person of normal fortitude might, in the circumstances of the case, have suffered a recognised psychiatric illness if reasonable care were not taken, and that, accordingly, the plaintiff is precluded from pursuing his claim by reason of s 32(1). 32 In my opinion, this argument, also, is untenable. As I read the materials, the plaintiff's claim is that WorkCover, by its wrong, caused him mental harm; but the papers contain also many references to complaints by the plaintiff that physical consequences were occasioned to him by reason of what he asserts to have been the wrong done to him. 33 Finally, WorkCover relies upon the Limitation Act 1969, prescribing a three year limitation for the commencement of proceedings. 34 WorkCover's submission appears to be based on an assumption that the plaintiff's claim against it is for a wrong done in June or July 2000. In fact, WorkCover's submission in respect of the Limitation Act is difficult to understand. However, whatever it is of which the plaintiff now complains, it had to have been done well before the judgment of Rein DCJ; but that was delivered on 22 September 2004. While it is probably so, it is not so demonstrably clear that what the plaintiff seeks to allege against WorkCover constituted a cause of action that arose more than three years ago. 35 In my opinion there is a more fundamental reason for refusing leave to the plaintiff to bring the proceedings against WorkCover. As will be seen by a close and careful reading of the proposed pleading, all that is alleged by the plaintiff is that the defendant had an obligation to WorkCover, and "they" (? the defendant or, more likely WorkCover) to himself. No matter how I try to tease out what the plaintiff seeks to assert in paras 6-10 inclusive of the proposed amended statement of claim, it is impossible to attribute to it any real meaning. It discloses no reasonable cause of action. Accordingly, leave to file the proposed amendment will be refused. 36 I order:

(ii) that the plaintiff's amended notice of motion be dismissed;

(iii) that the plaintiff pay the costs of the defendant, and the costs of WorkCover. **********

19/07/2007 - grammactical correction - Paragraph(s) [34]

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