Cromack v State of New South Wales

Notice of Motion filed by Defendant

1. The defendant filed a Notice of Motion on 28 March 2024 seeking an order pursuant to s 318(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act) that the plaintiff's pleading be struck out. The Notice of Motion also sought an order for the plaintiff to pay the defendant's costs.

The WIM Act

1. Section 315(1) provides as follows: "Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a 'pre-filing statement' setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Commission rules may require."
2. The reference to the "Commission" is a reference to the Personal Injury Commission of New South Wales, as defined in s 4 of the WIM Act.
3. Rule 86(1) of the Personal Injury Commission Rules 2021 (NSW) provides as follows: "For the purposes of s 315 of the 1998 Act, a pre-filing statement is - (a) to include a copy of the Statement of Claim intended to be filed in court, and (b) to attach the information and other documents on which the party proposes to rely."
4. Section 316 of the WIM Act requires the defendant to respond to the pre-filing statement. Section 317 of the WIM Act deals with defective pre-filing statements.
5. Section 318 of the WIM Act provides as follows: "Parties limited to pre-filing statement and defence (1) For the purposes of court proceedings on a claim for work injury damages - (a) the claimant is not entitled to file a Statement of Claim that is materially different from the proposed Statement of Claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and (b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant's pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and (c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and (d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court. (2) The court is not to grant leave under this section unless satisfied that - (a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and (b) the failure to grant leave would substantially prejudice the party's case. (3) The regulations may provide for exceptions to this section."
6. The basis for the application brought by the defendant in the Notice of Motion is the submission that the Statement of Claim and the Amended Statement of Claim filed in this court are materially different from the proposed Statement of Claim that formed part of the pre-filing statement served by Mr Cromack.

History of the Plaintiff's Claim

1. The affidavit of Ms Lazaris, solicitor, dated 19 June 2024 (PX 1) sets out the history of the claim made by Mr Cromack. On 11 June 2020 the solicitors for Mr Cromack sent a letter to the defendant serving particulars under s 282 of the WIM Act. On 15 June 2020 the defendant sought further and better particulars.
2. The solicitors for Mr Cromack qualified Mr David Dubos, a safety engineer and qualified ergonomist, to provide a report on liability. Mr Dubos provided a report dated 28 August 2020.
3. On 21 October 2020 Mr Cromack's solicitors wrote to the defendant's solicitors responding to the request for particulars made on 15 June 2020. Part of the response was to serve the report of Mr Dubos.
4. At pars 26-56 of the report of Mr Dubos, Mr Dubos set out his factual assumptions and observations. This was essentially a detailed recitation of instructions given by Mr Cromack concerning the alleged abuse and harassment by the senior officer, and the dealings between Mr Cromack and his superiors when he raised complaint about the conduct of the senior officer. These matters were set out in chronological order. Conversations were reproduced verbatim.
5. Matters which were set out in detail in the report of Mr Dubos formed the basis for pars 1-24 of the Statement of Claim, under the heading "Material Facts to Be Relied Upon". However, not all of the matters pleaded in the Statement of Claim filed in this court were present in the proposed Statement of Claim, which was one of the documents served as part of Mr Cromack's pre-filing statement.
6. The pre-filing statement was served on 31 July 2023. Part of the served pre-filing statement is reproduced as annexure "I" to PX 1. Unfortunately, and in breach of r 35.6(3) of the Uniform Civil Procedure Rules 2005 (NSW), the pages of the annexures are not numbered. The index to the pre-filing statement shows that it consisted of: 1. A draft Statement of Claim. 2. A draft Statement of Particulars. 3. Particulars of work injury damages pursuant to s 282 of the WIM Act. 4. A request for particulars dated 15 June 2020. 5. A response dated 21 October 2020 to the request for particulars. 6. An Amended Certificate of Determination dated 21 April 2020 issued by the Workers Compensation Commission. 7. A Statement by Mr Cromack. 8. The report of Mr Dubos. 9. A Medical Assessment Certificate of Dr Parmegiani. 10. Three reports of Dr Christopher Canaris. 11. Three reports of Dr Graham Vickey. 12. Australian Taxation Office (ATO) Notices of Assessment. 13. ATO tax returns. 14. ATO payment summaries.
7. In all, over 200 pages of material were served in the pre-filing statement.
8. The proposed Statement of Claim which was part of the pre-filing statement is the last document reproduced in annexure "I" to PX 1. As previously recited, it contains many paragraphs which found their way verbatim into the Statement of Claim filed in this court. However, it does not contain all of the paragraphs in the District Court Statement of Claim.
9. In particular, the following allegations did not appear in the pre-filing proposed Statement of Claim, but do appear in the District Court Statement of Claim and the Amended Statement of Claim: 1. Paragraphs 2-6, which deal with: concerns raised by a female staff member about the behaviour of the senior officer; Mr Cromack approaching the senior officer concerning these allegations; and a conversation between Mr Cromack and a superior about the incident. 2. Paragraphs 10-12, which concern interactions between Mr Cromack and the senior officer after a fire training drill. The drill itself is pleaded in par 9 of the District Court Statement of Claim, and it was also in the pre-filing proposed Statement of Claim. 3. Paragraph 14 which concerns verbal abuse directed by the senior officer to Mr Cromack, and the threat of violence offered to him. 4. Paragraph 15 which concerns Mr Cromack submitting a complaint regarding the behaviour of the senior officer to his manager. 5. Paragraph 16 which concerns Mr Cromack contacting his direct supervisor, but not having his complaint acted upon. 6. Paragraph 17, which concerns a phone call made by the senior officer to Mr Cromack advising him to cancel training and attend a medical appointment. 7. Paragraphs 21 and 22 which concern a call by a superior officer requiring the plaintiff to abandon a work trip to Armidale, to attend an urgent meeting at Maitland. 8. Paragraphs 23 and 24, which concern a meeting between the plaintiff and senior officers, during which he was stood down from his duties immediately, without an explanation being afforded.
10. These additional matters are facts which relate to the particulars of negligence recited above. They go to: 1. Particular (3), concerning what the defendant knew or ought to have known of the senior officer's behaviour. 2. Particular (4) concerning failure to heed the complaints made by Mr Cromack about being subject to bullying and harassment. 3. Particular (6) alleging that the defendant failed to adhere to its own principles and protocols relating to workplace bullying and harassment.
11. It was conceded for Mr Cromack that the District Court Statement of Claim was different to, and contained more information and allegations, than the pre-filing proposed Statement of Claim. The question for determination is whether those matters mean that the filed Statement of Claim is "materially different from the proposed Statement of Claim that formed part of the pre-filing statement served by the claimant": s 318(1)(a) of WIM Act.
12. There was no dispute that all of the matters pleaded in the District Court Statement of Claim were adequately notified to the defendant by the history contained in the report of Mr Dubos.

Materially Different: Relevant Authorities

1. In Hall v Ecoline Pty Ltd [2018] NSWSC 1732 (Hall) Davies J considered whether a Statement of Claim was materially different to a proposed Statement of Claim contained in a pre-filing statement. The plaintiff was participating in a team-building exercise, which involved him moving from tree to tree, while above ground. The pre-filing version stated that the plaintiff was injured when he was required to lift a plank of wood and he twisted his body in the direction of where the planks were to be transported, thus suffering an injury. One of the allegations was that the defendant had failed to provide a safe system of work, in that it required the plaintiff to lift, twist and transport planks of wood.
2. By contrast, the Statement of Claim filed in the District Court pleaded that the plaintiff was injured when he lost his footing, causing him to suffer injury. One of the allegations of negligence was that the defendant required the plaintiff to lift and/or twist a plank of wood to transport himself from tree to tree, with a risk of falling.
3. Davies J came to the conclusion that s 318 of the WIM Act had been contravened by the plaintiff because the Statement of Claim he filed in court was materially different from the proposed Statement of Claim that formed part of the pre-filing statement. The essential difference was in the description of the cause of the injury to the plaintiff's back. The pre-filing statement said that it was the requirement to lift a plank of wood which caused the injury, whereas the filed Statement of Claim said that the alleged mechanism of injury was a fall, rather than twisting because of lifting and transporting wood.
4. Davies J said at [42]: "The accident described in the filed Statement of Claim would require a different investigation from that described in the proposed Statement of Claim."
5. Davies J said at [43]: "No-one reading the pre-filing Statement, the claim documents or the medical reports could have understood that the plaintiff was injured as a result of a fall. The first time a fall is asserted is in the Statement of Claim."
6. In Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 (Sohailee) Cavanagh J considered a case where a defendant submitted that some of the particulars of negligence in the filed Statement of Claim were new, or materially different, from the proposed Statement of Claim that was served with the pre-filing statement.
7. Cavanagh J found at [12] that if he acceded to those submissions, the appropriate course would be to strike out only those particulars in the filed Statement of Claim about which the defendant complained.
8. In considering the meaning of the expression "materially different" his Honour said: "21 As set out in s 315 of the Act, before a claimant can commence court proceedings for the recovery of work injury damages the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence the claimant will rely on to establish or in support of the claim as the rules may require. Section 316 requires the defendant to respond within 28 days to the pre-filing statement by either accepting or denying liability or setting out a defence to the claim with particulars. 22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars of his claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. The purpose of requiring the claimant to do that must be to assist in the process of resolution of the dispute prior to proceedings being pursued and to ensure that the employer/proposed defendant has proper, adequate and complete notice of the claim that is and will be pursued by the injured employee. The obligation to provide that notice is complimented or enforced by s 318 of the Act. 23 The expression "materially different" must be given its ordinary, natural meaning. It must be interpreted in the context in which those words appear having regard to the overall purpose of s 318(1)(a) of the Workplace Injury Act. It is not necessary or appropriate to substitute other words to give meaning to the expression. It is also important to emphasise that not just any difference will give rise to the application of s 318. The difference must be material. Whether there is a material difference between the two documents must depend on the facts in each case. 24 There can be little doubt that a pleading of a different mechanism of injury or an accident occurring in substantially different circumstances would be a materially different pleading. A pleading of a different cause of action would be a materially different Statement of Claim. Further, raising a completely new allegation as to the conduct of the proposed defendant would be a materially different pleading. By that I mean that if the plaintiff asserted that the defendant did or failed to do something not raised at all, either generally or specifically, in the proposed Statement of Claim then that would be something which is materially different."
9. Cavanagh J compared the particulars of negligence in the pre-filing statement with the particulars of negligence in the filed Statement of Claim. He held that while some of the particulars expanded upon the original pleading, they were not materially different. The allegation made by the plaintiff in that case was that he had been injured because wall panels had been leant up against a wall, where they were likely to fall upon him. That allegation was made in the pre-filing statement and in the filed Statement of Claim.
10. Cavanagh J expressed his conclusions as follows: "37 It could hardly be suggested that the second defendant was unaware of the proposition being advanced by the plaintiff from the outset, that is, as part of the pre-filing documents, that the second defendant should have ensured that the wall panels were safely secured. I agree with the submission of Mr Sleight that, in the circumstances of this case, any form of supervision necessarily involves instruction and that the adding of that word does not create a material difference. 38 In the circumstances, whilst I accept that some of the wording is new and the expressions are different, it does not seem to me that the amended Statement of Claim is materially different from that set out in the proposed Statement of Claim."
11. His Honour characterised the pleaded Statement of Claim as merely "a better and more proper form of pleading" - at [41]. His Honour said at [42[ that s 318 of the WIM Act: "…does not require the plaintiff to file a Statement of Claim which is identical to the one which was served as part of the pre-filing process. It just cannot be materially different".
12. Harrison AsJ considered s 318 of the WIM Act, and relied upon the decision of Justice Cavanagh in Sohailee, in Toohey v Richard Crookes Constructions Pty Ltd [2023] NSWSC 805 (Toohey). Her Honour said at [8] that the WIM Act and the WC Act "exclusively specify the procedures that must be followed before a claim for work injury damages can be pursued, and the entitlements available. In this regard, the WIM Act and WC Act are comprehensive codes".
13. Her Honour referred to decisions of the Court of Appeal which have held that the legislative scheme is intended to encourage "early identification of issues and early resolution of matters without court proceedings": Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1 at [11].
14. At [48] Harrison AsJ said: "In both the pre-filing statement of claim and the ASC, the plaintiff was lifting a very heavy paver onto a pallet, which was stacked at chest height. As he placed the paver on the stack it started to slide. The mechanism of injury changes slightly but is not materially different. In the pre-filing statement, the plaintiff alleges that he pushed forward to prevent the pallet falling and as he did so, he experienced severe pain and discomfort in his lower back. It is my view that the ASC is not materially different to the pre-filing statement. The investigations that need to be conducted by the second defendant are similar."
15. The ultimate conclusion reached by her Honour was as follows: "51 It is my view that these amendments in ASC are made for the purpose of determining the real questions raised. The additional particulars to paragraph [10] of the ASC are those set out in the Hall Report. Hence it is my view that the plaintiff is granted leave to file the ASC. Such ASC is to be filed and served within 14 days."

Materially Different: Consideration

1. Mr Cromack is not pleading a different mechanism of injury, unlike the plaintiff in Hall. Mr Cromack has always asserted that his cause of action is based upon: 1. Being subject to abuse and harassment by employees of the defendant. 2. Vicarious liability of the defendant for the conduct of the senior officer. 3. Failure to act upon complaints made by Mr Cromack that he was being subject to harassment and bullying. 4. Failure of the defendant to adhere to its own principles and protocols relating to workplace bullying and harassment.
2. It is correct to say that the filed Statement of Claim contains more instances of bullying and harassment by the senior officer, and of complaints made by Mr Cromack not being attended to properly. However, the basic allegations of negligence are the same and the basic allegations concerning the cause of injury are the same. A bullying and harassment claim necessarily involves evidence of multiple events spread over a period of time, which can be quite lengthy. Some of those events may appear inconsequential by themselves, but taken as a whole they form the factual substratum for an allegation of breach of duty of care by an employer. As Senior Counsel for Mr Cromack put it, evidence could be called about all the events which were notified to the defendant by all of the material served in the pre-filing statement.
3. The investigation which the defendant had to conduct, based upon that material, would have concerned all of the allegations about the behaviour of the senior officer, and the responses of Mr Cromack's superiors when he raised complaint. Thus, this case is not like Hall, where a different investigation would have been conducted if the plaintiff had notified the mechanism of injury pleaded in the Statement of Claim filed in this court.
4. The expression "materially different" in s 318(1)(a) of the WIM Act must be interpreted in the context in which those words appear, having regard to the overall purpose of the legislation: Sohailee at [23]. The pre-filing Statement of Mr Cromack not only provided a proposed Statement of Claim, but gave a chapter and verse history of the dealings between Mr Cromack, the senior officer, and Mr Cromack's superiors to whom he complained. All of that information had to be given to the defendant, to assist in the process of resolution of the dispute prior to proceedings being pursued and to ensure that the employer had proper, adequate and complete notice of the claim: Sohailee at [22]. This is not a case like Hall, where an allegation about a crucial matter was raised for the very first time in the filed Statement of Claim.
5. Nor is this a case where there was a pleading of a different mechanism of injury, or substantially different circumstances surrounding the injury, or a different cause of action: Sohailee at [24]. The pre-filing proposed Statement of Claim put the defendant on notice of the cause of action, including particulars of the ways in which the defendant had breached its duty of care as an employer. The pre-filing proposed Statement of Claim gave adequate notice of the claim which the defendant had to meet.

Conclusion and Orders

1. I find that the allegations in the Statement of Claim and in the Amended Statement of Claim, filed in this court, are not materially different from the proposed Statement of Claim which was part of the pre-filing statement served by Mr Cromack.
2. The orders of the court are: 1. Dismiss the Notice of Motion filed by the defendant on 28 March 2024. 2. Order the defendant to pay the plaintiff's costs of and incidental to the Notice of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2024