Fields v Berrigan & Anor

Plaintiff consults a solicitor

1. On 24 May 2013, the Plaintiff gave instructions to Mr Grady. Paragraph 8 of Exhibit A, says this: "I first obtained instructions on 24 May 2013 from the plaintiff. At the time I was provided with an employee information sheet which identified Craig Martin Racing Stables as the employer[.] [A]nnexed hereto and marked with the letter "D" is a copy. I was also provided with the Worker's Injury Claim Form (annexure "A") which also nominates Craig Martin as the employer. On the basis of my instructions and those documents, I opened a file naming Craig Martin Racing Stables as the employer. As liability was accepted and the claim was one for lump sums pursuant to Section 66 of the Workers Compensation Act 1987, I did not turn my mind to the name of the employer again until I was provided with instructions to commence a common law claim for damages in October 2014."

Lump sum compensation claim

1. The same affidavit tells me at par [10] that on 14 April 2014, the Plaintiff made a claim for a lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 ("the 1987 Act") upon Craig Martin Racing Stables. On 25 July 2014, the then Workers Compensation Commission received an Application to Resolve a Dispute. For some reason that is not apparent, this application was "registered" on 28 July 2014. Why there was a three-day delay is unexplained. However, the Respondent named in that application is Craig Martin Racing Stables. Under the heading "Employer details," all that is given is the name "Craig Martin Racing Stables", together with a telephone number, a fax number, and an email address, all of which can be found on the "Employee Information Sheet" completed on the Craig Martin Racing Stables stationary. The insurer of the alleged employer was Racing NSW Insurance Fund. The injury described is that which occurred on 20 March 2013 at the Tamworth Racecourse, and the injury description contained in this application is this: "Fractured ribs, punctured lung, spleen removed, thoracic spine fracture, neck injury, lumbar spine injury and scarring." What was claimed was 27% whole person impairment. If that had been allowed, it would have entitled the Plaintiff to a lump sum of $51,975. The Plaintiff was, in essence, relying upon reports from Dr Alan Hopcroft bearing dates 21 November 2013, 7 April 2014, and 22 July 2014. I assume, therefore, that Dr Hopcroft assessed 27% whole person impairment.
2. The Application made by the Plaintiff to the Workers Compensation Commission enclosed a letter of offer to Everingham Solomons Solicitors serving a report of Dr Richard Powell. A Reply to the Application made to the Workers Compensation Commission appears to have been filed with an application to admit a late document by Messrs Turks Legal on 4 September 2014. It provided the details of the employer as Craig Martin Racing Stables, its insurer as being Racing NSW, and its representative being Turks Legal. It relied upon a report of Dr Powell bearing the date of 16 June 2014. That report is before me, and it assesses a whole person impairment of 17%. Craig Martin Racing Stables/Racing NSW/Turks Legal did not dispute "employment".
3. The Workers Compensation Commission appointed as an approved medical special Dr Chris Oates, an occupational physician. Dr Oates assessed a 23% whole person impairment. As a result of that, the Workers Compensation Commission issued a Certificate of Determination, naming as the applicant Todd Matthew Fields, and as the Respondent Craig Martin Racing Stables, giving as the date of the determination 12 November 2014, and ordering the Respondent to pay to the Applicant lump sum compensation under s 66 of the Workers Compensation Act 1987 of $39,922.83 in respect of 23% permanent impairment resulting from the injury of 23 March 2013. The certificate of determination is signed by Annette Farrell, who identified herself as Deputy Registrar and Arbitrator, and the document passed under the seal of the Workers Compensation Commission. It was addressed to both the Plaintiff's solicitor and to Turks Legal.

Plaintiff proposes a work injury damages claim

1. Paragraph 17 of the affidavit which is Exhibit A says this: "In approximately October 2014 I was provided with instructions to investigate a claim for damages and it was not until this time that I once again turned my mind to the identity of the Plaintiff's employer. The Plaintiff instructed me that on the morning of the accident he rode a number of horses for the trainer Craig Martin and then rode a horse being trained by Paul Berrigan. It was on a horse that was being trained by Paul Berrigan that he suffered the injury. As a result, I formed the belief that the person who was responsible for the Plaintiff's accident was the Defendant [Paul Berrigan] and on 17 February 2015, the Plaintiff made a claim for common law damages - work injury damages, upon the Defendant and Racing NSW. Annexed hereto and marked J are copies of the correspondence dated 17 February 2015." The correspondence purports to give particulars pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").
2. On 26 February 2015 Turks Legal, on this occasion represented by Ms Adele Fletcher, wrote to the Plaintiff's solicitors in the following substantive terms: "Tamworth Jockey Club (deemed employer) and Todd Fields I am instructed to act on behalf of the Tamworth Jockey Club (being the deemed employer of the plaintiff in respect of the injury sustained by him on 21 March 2013) on instructions from its workers compensation insurer, Racing NSW. I refer to your letter dated 17 February 2015 addressed to Racing NSW. That letter, in the subject line, refers to a claim being made against Paul Berrigan. However, the plaintiff's injury occurred on the premises of the Tamworth Jockey Club. Accordingly, pursuant to Clause 9 of Schedule 1 of the [1998 Act], the Tamworth Jockey Club is deemed to be the plaintiff's employer as at the time of the injury the plaintiff was engaged in riding work in connection with horse racing on the premises of a racing club. Accordingly, the correct defendant in respect of any claim for work injury damages is the Tamworth Jockey Club. I further note that in any event, leaving to one side the operation of Clause 9 of Schedule 1 of the 1998 Act, the plaintiff was not employed by Paul Berrigan at the time of his injury. Rather, he was working as a freelance track work rider for Paul Berrigan, and could best be described as a freelance contractor to Mr Berrigan. In those circumstances, if any claim is to be pursued as against Mr Paul Berrigan it is respectfully submitted that such a claim would be a public liability claim which should be directed to Mr Berrigan's public liability insurer, and is not a work injury damages claim. In the circumstances, can you please confirm that a work injury damages claim is not being pursued as against Mr Paul Berrigan? Please also advise if you intend to pursue public liability claim against Mr Berrigan. (To this end, should you require assistance in identifying the public liability insurer of Paul Berrigan, please let me know and I will make enquiries to determine if we can ascertain who Mr Berrigan's public liability insurer was at the relevant time). It is further noted that whilst it is open to the plaintiff to pursue a work injury damages claim as against the Tamworth Jockey Club as his deemed employer in respect of the injury, it is respectfully submitted that given the circumstance of the injury there is no liability in the deemed employer. In the event that the plaintiff nevertheless decides to pursue a work injury damages claim against the Tamworth Jockey Club, I advise that we are instructed to accept service of any such notice of claim."
3. There may be criticisms of this communication. The first thing to be noted is that it is now well known that Paul Berrigan had a policy of insurance indemnifying him for his liability under the 1987 Act with Racing NSW. It should also be clear from the proceedings that had been commenced in the Workers Compensation Commission that Craig Martin Racing Stables also had a workers compensation policy with Racing NSW. It is clear from the communication which I have just quoted that Racing NSW also insured Tamworth Jockey Club. Although there might be a dispute as to whether the actual employer was Paul Berrigan, if he were, then the policy of insurance that he had with Racing NSW would cause Racing NSW to indemnify Paul Berrigan. If the Plaintiff were not an employee of Paul Berrigan, then it may be difficult for him to establish liability otherwise at common law. If liability at common law could otherwise be attributed to Mr Berrigan, then some other insurer might respond for Mr Berrigan's liability, depending on his insurance policies.
4. The deeming provisions in Sch 1 of the 1998 Act, which were transferred from Sch 1 of the 1987 Act and which originally came from the Workers Compensation Act 1926, do not make any deeming of the actual employer to be a non-employer. In other words, the Plaintiff could well have been actually employed by Mr Berrigan, and he would have a direct liability to the Plaintiff, even if the Tamworth Jockey Club were deemed to be employer under Sch 1 Cl 9 of the 1998 Act.
5. Recent decisions of the Court of Appeal make it clear that if proceedings are brought at common law against a deemed employer, those damages are governed by the workers compensation legislation rather than by the Civil Liability Act 2002. However, there is no authority for the proposition that a deemed employer under the workers compensation legislation owes the same duty of care to an injured person that an employer owes to his injured employee. In other words, the Plaintiff could well have been successful in a claim for work injury damages against Mr Berrigan if he could establish that Mr Berrigan was his actual employer. The vice is in the third paragraph of the letter which I have just quoted.
6. On 26 May 2016, Mr Tim Pitt of Messrs Moray & Agnew advised the Plaintiff's Solicitor that he had instructions to act for the liability insurer of Mr Berrigan. I assume, therefore, he means the public liability insurer rather than the workers compensation insurer. Until recently, Mr Berrigan continued to be represented by Moray & Agnew, but is now represented by McCabes Lawyers.

Court proceedings commenced

1. The 2016 proceedings in this Court were commenced on 18 March 2016. Although the Plaintiff had complied with ss 281 and 282 of the 1998 Act, he had not complied with the requirements of providing a pre-filing statement as required by s 315. Nor had he complied with provisions of s 318A, which required him to undergo mediation of a claim for work injury damages before the commencement of court proceedings. There was also a suggestion of a failure to comply with the requirement that the Plaintiff's entitlement to lump sum compensation under s 66 be established prior to the commencement of proceedings, in order to establish what must be established pursuant to s 151H of the 1987 Act.

Amending the WCC Certificate

1. On 28 July 2016, Moray & Agnew wrote to the Plaintiff's solicitors saying, inter alia, this: "Please advise why the certificate refers to 'Craig Martin Racing Stables' as the respondent when it has been pleaded that the plaintiff was employed by the defendant." That is clearly a reference to the certificate issued by the Workers Compensation Commission bearing the date 12 November 2014. The certificate was then amended by the Workers Compensation Commission. It was amended to show as the respondent Mr Berrigan. The amended certificate passed under the seal of the Workers Compensation Commission and was signed by Annette Farrell as Deputy Registrar and Arbitrator, the same person who issued the original certificate on 12 November 2014. The amended certificate shows the date of amendment as being 23 September 2016.
2. This certificate was made because of an application made by the Plaintiff's solicitors to the Workers Compensation Commission and it was made with the consent of Mr Douglas Vorbach, a solicitor, who was working with Messrs Turks Legal at the time. He is a well-known and respected workers' compensation lawyer. Having obtained an amended certificate, it was provided by the Plaintiff's solicitors to Turks Legal, Everingham Solomons Lawyers, and to Moray & Agnew.
3. On 21 September 2016, the Plaintiff served upon Mr Berrigan a "pre-filing statement" in the form of a Statement of Claim dated 21 September 2016. I am told that the latter document is in the same form as the Statement of Claim which commenced these proceedings on 18 March 2016.
4. On 26 October 2016, Messrs Everingham Solomons Lawyers sent to Messrs Moray & Agnew a copy of the communication he had made to Mr Berrigan on 21 September 2016, serving a pre-filing statement in the form of a Statement of Claim dated 21 September 2016. The letter concludes with this: "We are in the process of filing an application for mediation and we will serve this on you shortly."
5. This, with the utmost respect to Mr Best, who has argued otherwise, was an attempt to retrospectively comply with the requirements of the 1998 Act which had been not observed by the Plaintiff's solicitor prior to his commencing these proceedings on 18 March 2016.

An attempt to mediate and further attempts to amend the WCC certificate

1. An application for mediation of a work injury damages claim was received by the Workers Compensation Commission on 29 October 2016 and was "registered" on 31 October 2016. Why there was a three day delay is not established. Again, the Respondent's details give the name and address of Mr Berrigan and as his representatives Messrs Moray & Agnew.
2. On 6 December 2016, Messrs Turks Legal wrote to the Plaintiff's solicitors. The letter is under the hand of Mr Vorbach. The substance of the letter is this: "I refer to your letter of 29 November 2016 serving an Application for Mediation for work injury damages. As discussed in our letter of 26 February 2015 and 5 May 2016, Paul Berrigan is not your client's employer for the purposes of such a claim. Under the legislation, the employer is Tamworth Jockey Club. To bring a claim for work injury damages against Tamworth Jockey Club, it would be necessary for your client to establish negligence on the part of the club. You have commenced proceedings in the District Court against Paul Berrigan. Although he was your client's actual employer at the time, for the purposes of workers compensation claims, the employer is Tamworth Jockey Club because of the deeming provisions. As discussed in our previous correspondence the claim against Paul Berrigan will be dealt with as a public liability claim, and there is no need for you to fulfil the procedural requirements under the 1998 Act. Please let me know if Moray & Agnew have filed a defence to the District Court proceedings. If so, please provide me with a copy. As the application for mediation does not name the correct employer, I do not propose to file a response."
3. Again, there is vice in that letter because, as I have already said, there is no deeming provision deeming a person who is the actual employer not to be the employer, and insofar as the law now provides that a claim against a deemed employer, if made, must be governed by the work injury damages scheme, it would still be necessary for a claim against a deemed employer for the procedural requirements of the 1998 Act to be observed.
4. On 10 January 2017, Turks Legal wrote to Moray & Agnew. The letter is again under the hand of Mr Vorbach. It contains this substance: "You have identified an error on my part in agreeing to amend the workers compensation proceedings to name Paul Berrigan as the employer. That claim should have been brought against the deemed employer, Tamworth Jockey Club. I will have the plaintiff agree to the amendment of the proceedings in the Workers Compensation Commission. Once that has occurred, my client will be indemnifying the correct employer and any claim for work injury damages should be brought against that employer. It will not be inconsistent for Racing NSW to refuse to indemnify Mr Berrigan in respect of any proceedings brought at common law against him." The last sentence of Mr Vorbach's communication is a little loose. I assume that when he referred to proceedings brought against Mr Berrigan "at common law", he was referring to a public liability claim rather than a claim for work injury damages. His letter is loose because a claim for work injury damages is largely governed by the common law as far as a liability is concerned. The legislation restricts the quantum of damages but says little, if anything, about liability at common law. Despite the invitation made by Mr Vorbach, the Plaintiff's solicitors did not consent to the further amendment of the certificate of determination that had been issued by the Workers Compensation Commission.
5. On the same day, Mr Vorbach sent this communication to the Plaintiff's solicitor by email: "I refer to your letter of today concerning the amendment of the employer on the COD [Certification of Determination]. I attach a letter received from Moray & Agnew dated 9 January 2017 and my reply of 11 January 2017. It does not matter what the COD says. The correct legal position, which no-one can refute, is that the Tamworth Jockey Club was the employer of the plaintiff at the time of his injury because the injury occurred while he was riding trackwork. This triggers the deeming provision in the legislation. As my client will be a party by way of the proposed cross-claim, we will be able to argue this point. It is in your client's interest that the employer is the Tamworth Jockey Club, because then his claim...for damages will be assessed under the Civil Liability Act, not the limited damages under Part 7 of the Workers Compensation Act allowing him the full spectrum of heads of damages, not just economic loss. Please review your position. It would be much simpler if the COD reflected the correct legal position."
6. If the Plaintiff had consented to the certificate of determination of the Workers Compensation Commission being amended to show as the deemed employer Tamworth Jockey Club, much of what has occurred before me would have been otiose. Unfortunately for the plaintiff, Mr Vorbach's suggestion that damages against the Tamworth Jockey Club would be assessed under the Civil Liability Act 2002 (NSW) is not correct, as recent decisions of the Court of Appeal make clear.
7. As to Mr Vorbach's assertion that "it does not matter what the COD says", much of what has occurred before me would be otiose if that were correct. However, Mr Grady of Messrs Everingham Solomons Lawyers maintained his opposition to any further amendment to the certificate of determination of the Workers Compensation Commission.
8. On 29 March 2017, Ms Annette Farrell of the Workers Compensation Commission sent a communication to the Plaintiff's solicitor, to Mr Pitt at Moray & Agnew, and to Mr Vorbach at Turks Legal. The substance of the communication is this: "Whilst I note the email below from Mr Grady, I am of the view that the respondent 'Craig Berrigan' was not joined nor represented in the statutory compensation proceedings (3827/12) and that Mr Vorbach, representing Racing NSW was not in a position to consent to the change in respondent. Accordingly, the Amended Certificate of Determination dated 23 September 2017 is rescinded. As such, the matter will be listed for teleconference before an Arbitrator to determine the appropriate respondent. Representatives for Todd Fields, Craig Martin Racing Stables/Tamworth Jockey Club and Paul Berrigan should be in attendance at the teleconference. Mr Fields and Mr Berrigan may attend, but are not required to do so. Separate advice of the date/time for the t/c will be issued. I note also the request to refer the Application for Mediation (5572/16) to teleconference. As that matter does not involve statutory compensation, the matter cannot be referred to an Arbitrator for teleconference as the Commission has no jurisdiction to hear or determine matters with respect to a work injury damages claim. Matter number 5572/16 will not proceed until the respondent in Matter No 3827/14 is determined."
9. Ms Farrell has signed the document as "Director, Operations" of the Workers Compensation Commission rather than as either a Registrar, Deputy Registrar, or Arbitrator. Furthermore, the document is not under seal. No one can tell me if there was a teleconference to try to determine who the person to be named in the certificate of determination was. I have been referred to a teleconference held on 2 June 2017, but the conference, which was before Mr Paul Sweeney, an Arbitrator, appears to have been regarded by him as one concerning the mediation of the common law proceedings.
10. However, a file note made by the Plaintiff's solicitor sums up the position in this fashion. After noting the appearances, including Mr Tim Ainsworth, who appeared for the Nominal Insurer, Mr Grady said this: "I said that it is my understanding that Mr Vorbach was of the view that Mr Berrigan was uninsured and hence the inclusion of a nominal defendant. Mr Vorbach took issue with that and said that he had insurance but he wasn't the deemed employer in accordance with the legislation. We went round and round in circles for about a half an hour not getting anywhere very fast. Eventually Mr Vorbach made the concession that he might be able to get instructions to the effect that if Mr Berrigan is found to be employer, that the pre-conditions of the workers compensation legislation have been met." No concession to that effect has ever been forthcoming. The application for mediation was dismissed.

Delay

1. In an affidavit sworn on 19 July 2022, which is Exhibit B, the following is stated: "6. The listing of the matter for hearing was delayed between March 2016 and March 2021, with the consent of the First Defendant, whilst the Supreme Court, the Court of Appeal and High Court heard and determined two 'jockey' cases, namely, Goode v Angland [2016] NSWSC 1016 a decision of Harrison J published 22 July 2016 which was the subject of appeal to the Court of Appeal, Goode v Angland [2017] NSWCA 311 delivered on 7 December 2017; Singh v Lynch [2019] NSWSC 1403 a decision of Fagan J delivered on 18 October 2018, which was the subject of an appeal to the Court of Appeal, Singh v Lynch [2020] NSWCA 152 delivered on 23 July 2020. The Court of Appeal's decision was then the subject of an application for special leave to the High Court. On 11 February 2021 the High Court refused special leave. 7. Consequent upon the High Court's decision, I formed the view that the Plaintiff's claim pursuant to the Civil Liability Act could not succeed and I would need to amended the pleadings to bring a claim under the Workers Compensation Act 1987. I also formed the opinion that the proceedings should be pursued against the Tamworth Jockey Club, the 'deemed employer' of the plaintiff."

Applications to this Court

1. The affidavit goes on to outline certain procedural matters which occurred in this Court on 15 March 2021 when certain orders were made by Wilson DCJ, and also on 5 May 2021, of which his Honour granted leave to the Plaintiff to file and serve an amended Statement of Claim within seven days. Wilson DCJ listed the matter for directions on 25 August 2021.
2. On 10 May 2021, the Plaintiff filed a further amended Statement of Claim. Eventually, another amended Statement of Claim was filed on 21 March 2022, inter alia, joining the Tamworth Jockey Club as the Second Defendant. It also sought to join the Workers' Compensation Nominal Insurer. That was done, but the proceedings against the Workers' Compensation Nominal Insurer have been discontinued because it is clear that the First Defendant, Mr Berrigan, had, at all material times, a workers compensation policy issued by Racing NSW.
3. On 2 September 2022, I dismissed the 2016 proceedings against the First Defendant for a want of observance of Ch 7 Pt 6 of the 1998 Act. No pre-filing statement had been served upon the First Defendant, nor had there been any application for mediation, let alone mediation of the Plaintiff's common law action against the First Defendant. The allegation made in the amended pleadings was that the Plaintiff was employed by Mr Berrigan. The question currently before me is whether the current proceedings, that is, the 2016 proceedings, insofar as they have been amended to join the Second Defendant, ought proceed.

Tamworth Jockey Club's motion

1. There is a Notice of Motion filed by the Second Defendant on 21 July 2022. The Motion was returnable on Monday 25 July 2022, that is, the first day of a two week sittings commencing at Tamworth on that date. The first two prayers for relief are that the proceedings be dismissed as an abuse of process. The third and fourth prayers are these: "3. In the alternative, pursuant to sections 313, 315(1) and/or 318A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), these proceedings be struck out. 4. In the alternative, pursuant to Regulation 12.10 of the Uniform Civil Procedure Rules 2005 these proceedings be stayed until such time as the costs of proceedings 2016/0085305 are paid."
2. I should indicate the steps taken by the plaintiff to attempt to comply with the procedural requirements mandated by 1998 Act. On 14 April 2021 the Plaintiff's solicitors wrote to the Tamworth Jockey Club, providing particulars pursuant to sections 281 and 282 of the 1998 Act. No complaint has been made about the adequacy of those particulars. The same letter was sent to Racing NSW, pointing out that it had been conceded on its part that it was the deemed employer of the Plaintiff pursuant to Sch 1 Cl 9 of the 1998 Act. On the same day, a further letter was sent enclosing certain correspondence that had passed between the Plaintiff's solicitors and others concerning the plaintiff's claim. This further letter was addressed to Racing NSW. On p 2 of that letter is this: "We request that you concede, for the purposes of s.313 and s.314 of the Workplace Injury Management and Workers Compensation Act 1998 and s.151H of the Workers Compensation Act 1987 that the degree of permanent impairment suffered by the Plaintiff is sufficient to commence proceedings to serve a pre-filing statement, be awarded and/or recover work injury damages." Whilst the paragraph is not well expressed, the intention is clear, and the meaning that would be conveyed to the recipient is clear.
3. That letter was responded to by the Leigh Virtue & Associates, who advised the Plaintiff that they had been instructed to act on behalf of Racing NSW. After making that admission, the letter continues: "Without conceding your claim to have been properly made, we can advise, for the avoidance of doubt, that our client denies liability in respect of the claim for Work Injury Damages. In particular, our client denies all allegations of negligence and loss and otherwise denies that your client has any entitlement to the payment of Work Injury Damages as alleged or at all. Lastly, we note that your client is proceeding against the Trainer, Mr Berrigan under the Civil Liability Act and we note that our client has paid statutory workers compensation benefits to and on behalf of your client. We ask that you ensure that our clients interests in the reimbursement of those statutory compensation benefits is preserved."
4. The letter is under the hand of Mr Paul Macken, a partner in the firm of Leigh Virtue & Associates. Amongst the statutory worker's compensation benefits paid to the Plaintiff is the lump sum compensation under s 66 of the 1987 Act.
5. In a further letter of 4 May 2021, Leigh Virtue & Associates confirm that they were acting on behalf of Racing NSW "as the insurer of the employer Tamworth Jockey Club". I do not take that admission to be an admission that Tamworth Jockey Club was the actual employer, but rather as an admission that it was the deemed employer which appears to be common ground.
6. On 30 July 2021, the Plaintiff's solicitors served upon Leigh Virtue & Associates a pre-filing statement, and a copy of an Amended Statement of Claim that was filed on 10 May 2021. The pre-filing statement is in the form of an Amended Statement of Claim naming Tamworth Jockey Club as the Second Defendant, underlining the relevant further amendments to the Amended Statement of Claim filed on 10 May 2021, and serving evidentiary material numbered between paras [4] and [61], including the medical assessment certificate made by Dr Chris Oates on 8 October 2021, the reports of Dr Hopcroft relied upon by the Plaintiff, and the report of Dr Powell which had been relied upon initially by Racing NSW.
7. On 23 August 2021, Mr Macken from Leigh Virtue & Associates wrote to the Plaintiff's solicitors in these terms: "Further to your previous correspondence and to the Pre-Filing Statement you have served, we enclose herewith by way of service a Pre-Filing Defence and Schedule of Documents to be relied upon including the report of Dr Powell of 16 Jun 2014. We do not propose to re-serve on you the documents attached to your letter of July 30 last. In the event you are instructed to proceed with an Application for Mediation we ask that you forward us a sealed copy of that Application so that we can file a response."
8. The pre-filing defence contains 10 numbered paragraphs. The eighth paragraph is this: "The proposed second Defendant says that payments of statutory compensation benefits have been to for or on behalf of the Proposed Plaintiff and the Proposed second Defendant pleads such payments in defence of the Statement of claim." One will note immediately that there was no averment or protestation, if one would prefer to use that term, by Mr Macken that the Plaintiff had not satisfied the statutory threshold of establishing that his whole person impairment was greater than 15%. Indeed, as I have mentioned yesterday, the report of Dr Richard Powell certifies a whole person impairment of 17%.
9. The payments of compensation referred to in par [8] of the pre-filing Defence include the lump sum compensation paid to the Plaintiff under s 66 of the 1987 Act. Paragraph [10] of the pre-filing Defence places reliance on a large number of provisions of the 1987 Act, including s 151H. On 31 August 2021, the Plaintiff's solicitors requested "full particulars of your reliance on each of those sections, and what the assertions are". No such particulars have been provided to the Plaintiff by Leigh Virtue & Associates, nor by those who have subsequently taken over the carriage of the matter on behalf of the Second defendant, Messrs Bartier Perry Lawyers.
10. On 16 September 2021, the Plaintiff's solicitors served upon, inter alia, Leigh Virtue & Associates a copy of a sealed application for mediation to resolve a work injury damages claim in the Personal Injury Commission, which replaced the Workers Compensation Commission. On 28 February 2022, the Personal Injury Commission issued, under seal, a certificate of mediation outcome. The mediator was Ms Margaret Mary McCue. Inter alia, she certified that the parties failed to resolve the dispute and reach settlement at the mediation. It is clear from further paragraphs of the certificate that no offer of settlement was made to the Plaintiff. I mention that because the reason for the intricate mechanisms fixed by the 1998 Act was in an endeavour to reach a settlement of issues prior to the commencement of proceedings in this Court or in the Supreme Court.
11. Before me as an annexure to Exhibit C is a letter from the Plaintiff's solicitors to Messrs Bartier Perry Lawyers, who now act for the Second Defendant, commenting upon the mediation conference in the Personal Injury Commission, albeit that it is referred to as being in the Workers Compensation Commission. It contains this statement: "When the matter was being discussed by the parties, Mr Macken agreed that there were no other 'procedural irregularities' preventing the plaintiff's claim for [sic] being pursued." In other words, Mr Macken of Leigh Virtue & Associates, who were then acting for the Tamworth Jockey Club, raised no problem with the matter proceeding further, that is, proceeding to this Court. That led to the filing of the Statement of Claim on 21 March 2022.
12. In other words, to put matters in short compass, the Plaintiff complied with the obligation to provide particulars, the Plaintiff complied with the obligation to serve a pre-filing statement on the Second Defendant. The Second Defendant replied with a pre-filing defence and made no averment that the Plaintiff's lump sum compensation entitlement was insufficient to enable him to bring an action for work injury damages. There was then the required mediation, which was unsuccessful, and that led to the filing of the Amended Statement of Claim on 21 March 2022, which involved the joining of the Second Defendant.
13. The relevant pleadings in the Amended Statement of Claim filed on 21 March 2022 are these: "2. At all material times the second defendant provided thoroughbred horse training and racing facilities at the Tamworth Racecourse located at the Jewry Street, Taminda, Tamworth in the state of New South Wales (The Tamworth Racecourse). … 4C. In the alternative, at all material times the plaintiff was employed by the first defendant, he was deemed to be employed by the second defendant, pursuant to Schedule 1, Clause 9 of Workplace Injury Management and Workers Compensation Act 1998. … 6. It was condition of the first defendant's trainee and racing business conducted at Tamworth Racecourse, that he adhered to directions issues by the second defendant with respect to the use of its facilities at the Tamworth Racecourse. 7. At a point of time prior to March 2013 the second defendant had issued a direction to thoroughbred horse trainers that all track work, the riding of thoroughbred horses upon its training tracks was to be concluded by 8am. 8. The direction referred to in paragraph 7 was enforced by the second defendant at all material times. …. 21A. At the time of the injury only one training track was available as directed by the second defendant for use that led to congestion on the training track, with the effect that horses of differing ages and levels of experience were being worked together. 21B. As a result of the congestion on the track, the plaintiff's horse was startled and took flight causing the horse to bolt and the plaintiff to be thrown from the horse at high speed. 22. The injuries sustained by the plaintiff were caused by the negligence of the first and second defendant. 23. As a consequence of the said injuries and disabilities the plaintiff has suffered loss and damage. PARTICULARS OF NEGLIGENCE … Particulars of Negligence against the second defendant … 13. Rendering most of the training tracks unusable on 20 March 2013 by overwatering. 14. Permitting all horses participating in trackwork/training on 20 March 2013 to use the one single track. 15. Permitting the training track to become congested. 16. Permitting horses of different ages and levels of experience to work together on the same track. 17. Failing to adequately manage the use of the training track on 20 March 2013. 18. Failing to take any or any adequate or additional steps measures to manage and control the training track on 20 March 2013 when it knew or ought to have known of the dangers that would arise from all horses training on one single track. 19. Failing to provide a safe system of work for the plaintiff. 20. Failing to provide adequate or proper directions instructions and/or supervision in relation to the use of the training track on 20 March 2013. 21. Failing to provide any or adequate warnings to the plaintiff. 22. Failing to carry out any or any adequate inspections in relation to the use of the training track on 20 March 2013."
14. The particular of negligence numbered 19 against the Second Defendant is controversial to say the least. I know of no case law which places upon a deemed employer the duty of care owed to an employee by his or her employer. In fact, a deeming provision is an acknowledgment that what a statute deems to have happened has, actually, not happened. That is, in the current case, the deeming of the Second Defendant to be Plaintiff's employer for the purposes of the workers' compensation legislation is an acknowledgment that the Second Defendant was not his actual employer. However, whether the Second Defendant owed the Plaintiff the duty of care referred to in particular of negligence numbered 19 is a matter for the trial judge, and the Court of Appeal.

Motions in the 2016 Proceedings

1. In the 2016 proceedings, there are three Notices of Motion before me. The first is one filed by the Plaintiff on 10 May 2022, bearing the date 9 May 2022. It seeks an extension of the limitation provided by s 151D(2) of the 1987 Act, because more than three years had elapsed between the time of the Plaintiff's injury and the commencement of proceedings against the Second Defendant.
2. There is a second Notice of Motion dated 15 July 2022 filed by the Plaintiff, seeking leave to discontinue the proceedings. However, I have been told, and accept, that was filed merely because the Plaintiff commenced the 2022 proceedings and thought that having both on foot was otiose, which is quite correct. I have been asked merely to deal with that Notice of Motion after I had dealt with the matters in the 2022 proceedings.
3. Another Notice of Motion was filed on behalf of the First Defendant, but the Second Defendant adopts it and relies upon the relief sought by the First Defendant. That relief, leaving aside the usual prayer for costs, which is always otiose, is this: "1. Pursuant to Rule 12.7(1) of the Uniform Civil Procedure Rules 2005 these proceedings be dismissed due to the Plaintiff failing to prosecute the proceedings with due despatch. 2. Pursuant to sections 313, 315(1) and/or 318A or the Workplace Injury Management and Workers Compensation Act 1998 (NSW), that these proceedings be struck out."
4. Those notice of motion were returnable at Tamworth on 25 July 2022. That was the first day of a two-week sitting of this Court in its civil jurisdiction at Tamworth, over which I presided. There were, in effect, two matters in the list for hearing, the first of which had priority and I was assured that it would take at least two weeks, and that it would never, ever, settle. Of course, it settled on day four of the sittings. Leaving that aside, this matter was before me on the first day of the sittings when counsel appeared and raised a number of the matters to which I have referred in these reasons, and pointed out a large number of difficulties to the matter proceeding to trial. In any event, it appeared that there would not be an opportunity for the matter to proceed at those sittings. When the first matter listed settled on day four of the sittings. I sought to recall this matter to start it on day six of the sittings, but that became in impossibility, owing to commitments by Counsel which, inter alia, were personal and with which I would not interfere. I listed the matter for hearing before me on 30 August 2022, and proceeded again on 2 September 2022, and then I stood the matter over to 15 September 2022, listing the matter at times convenient to my sitting schedule.
5. I deal first with the the notice of motion relied upon by the defendants. I have spent some considerable time outlining the history of this matter. A matter was commenced within the three-year period fixed by s 151D of the 1987 Act. Thereafter, it was beset by the procedural difficulties, to which I have referred, and it was also beset by the need to delay the proceedings pending the outcome of the "jockey cases", to which I have referred, and which are cited in the affidavit of the Plaintiff' solicitor, which I have quoted.
6. The question then becomes whether there has been a breach of s 313 of the 1998 Act as far as the Second Defendant is concerned, the 2016 proceedings having already been dismissed against the First Defendant. Section 313 of the 1998 Act is in the following terms: "If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by a medical assessor under Part 7." The requisite degree of permanent impairment is 15% whole person impairment. There is no dispute that the Plaintiff has a permanent impairment of at least 17%. That is the opinion of Dr Richard Powell, relied upon by the Defendant. No objection was taken by Mr Macken, a partner at Leigh Virtue & Associates, who was then acting for the Second Defendant about the degree of permanent impairment being at least 15%. In fact, he accepted that there had been a valid pre-filing statement made, because he provided a pre-filing defence and raised no objection to the matter going to mediation in the Personal Injury Commission, and that occurred. The fact that the Second Defendant is now represented by a different firm of solicitors cannot change the concessions which had been made on behalf of the Second Defendant by Mr Macken.
7. Since there is no dispute that the Plaintiff's whole person impairment exceeds 15%, the fact that the record of the Workers Compensation Commission shows that the certificate of determination made by Dr Chris Oates was against Craig Martin Racing Stables is irrelevant.
8. The Second Defendant argues that if this matter proceeds to determination, there might be a conflict of judgments between the order made by the Workers Compensation Commission and any order made by this Court awarding damages to the Plaintiff. That, of course, presumes that the Plaintiff will be successful. Most defendants do not base their positions on an assumption that the Plaintiff will be successful. In any event, before the Plaintiff could obtain a judgment, there is sufficient time for the Plaintiff's solicitor to move the Personal Injury Commission, the successor to the Workers Compensation Commission, by whatever interlocutory steps are relevant in the Personal Injury Commission, to correct the Certificate of Determination that has been made. If the same error had occurred in the Compensation Court of New South Wales, the appropriate method of proceeding would have been by way of Notice of Motion supported by affidavits attesting to a common mistake, that is a mistake made by the Plaintiff's solicitors and a mistake made by the solicitors acting for Racing NSW, which was the workers compensation insurer of Paul Berrigan, Craig Martin Racing Stables, and the Tamworth Jockey Club. Furthermore, I would point out that a claim for compensation is not an action in rem, and one cannot obtain an order against a set of stables. Whether the award was made against, for example, Craig Martin personally or Craig Martin Racing Stables Pty Ltd is a matter which any Court would properly be concerned about. In other words, it appears to me that, ex facie, the certificate of determination is in itself deficient, and needs to be corrected in any event.
9. The next provision relied upon by the second defendant is s 315(1). That is in these terms: "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." Here, the Plaintiff did serve a pre-filing statement on the Second Defendant prior to amending his Statement of Claim joining the Second Defendant.
10. The next provision relied upon by the Second Defendant is s 318A. In short, s 318A requires mediation of the claim before commencement of the court proceedings. Before proceedings were commenced against the Second Defendant, there was such a mediation carried out by Ms McCue in the Personal Injury Commission. Accordingly, the Second Defendant is not entitled to the relief sought by the First Defendant in the Notice of Motion filed by the First Defendant on 21 July 2022. That Notice of Motion, insofar as the Second Defendant relies upon it, is dismissed.
11. There are a number of other things I should say because of the arguments which have been advanced. The pre-filing defence served upon the plaintiff by Mr Macken raised as a defence the statutory payments made by the Second Defendant to the Plaintiff under the 1987 Act. The actual defence filed by Bartier Perry on behalf of the Tamworth Jockey Club on 15 April 2022 does, to a large extent, mirror precisely the pre-filing defence provided by Mr Macken with one substantial difference. There are some minor differences for example in the numbering of paragraphs, and a minor amendment where something that was previously not admitted has been denied, but under the Uniform Civil Procedure Rules 2005, a non-admission is the equivalent of a denial, and has been since New South Wales adopted the Judicature system of 1875 in 1973.
12. The omission by Bartier Perry from the defence is the omission of the defence of payments made to, for, or on behalf of, the Plaintiff by the Second Defendant pursuant to the 1987 Act. Section 318(1)(b) of the 1998 Act provides this: "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…" The leave the Court has not been granted to the Defendant to file that defence. Nevertheless, the Plaintiff's solicitor has made no application, yet, to the Court to strike out the defence that has been filed, but asking the Court to permit the Second Defendant to file a defence consonant with the pre-filing defence served by Mr Macken. Subject to the extension of the limitation period, I therefore allow the 2016 proceedings to persist against the Second Defendant.

Motions in 2022 Proceedings

1. On 21 June 2022, the Plaintiff filed a second set of proceedings, matter number 2022/00180644 at Tamworth. That named the Plaintiff as Plaintiff, Paul Berrigan as the First Defendant, and the Tamworth Jockey Club as the Second Defendant. It also joined the Workers Compensation Nominal Insurer, because it was thought that Paul Berrigan was uninsured for his liability under the Workers Compensation legislation, but that is an erroneous view on the evidence before me. In any event, the proceedings were discontinued against the Workers Compensation Nominal Insurer. In essence, this is a same set of proceedings brought by the same Plaintiff against the same Defendants.
2. Insofar as the 2016 proceedings persist against the Second Defendant, the proceedings are an abuse of process, but I shall defer making the formal ruling at this time. In the 2022 proceedings, the Plaintiff filed a notice of motion seeking leave nunc pro tunc to extend the limitation period pursuant to s 151D of the 1987 Act. The First Defendant filed a Notice of Motion on 21 July 2021 seeking that the proceedings be struck out as an abuse of process pursuant to Uniform Civil Procedure Rules 2005 r 14.28(1)(c) and, in the alternative, in the exercise of the Court's "inherent jurisdiction". In the alternative, the First Defendant sought that the proceedings be struck out for breach of ss 313, 315(1) and 318A of the 1998 Act. In the alternative, the First Defendant sought a stay of the proceedings until such time as any costs ordered in the 2016 proceedings were paid.
3. The Plaintiff relies upon a pre-filing statement in the form of a statement of claim dated 21 September 2016, served on 21 September 2016. There was no pre-filing defence served by the First Defendant, being the only defendant in the 2016 proceedings at the time. The problem here is that this was a retrospective attempt by the Plaintiff's solicitor to validate, if he were able to do so, the proceedings which he had commenced on 18 March 2016, two days short of the expiry of the three-year limitation period on 20 March 2016. In his affidavit of 11 March 2021, which is Exhibit A before me, Mr Grady said this at [28]: "In order to comply with procedures as set out in Part 6 of Chapter 7 of the [1998 Act], on 21 September 2016 a Pre-Filing Statement was sent to the Defendant. Annexed hereto and marked with the letter "P" is a copy of the letter to Paul Berrigan."
4. In his affidavit sworn on 19 July 2022, which is Exhibit B, Mr Grady made this concession in [40]: "I acknowledge that although I have taken steps since September 2016 to correct the procedural deficiencies with regard to the First Defendant the Court of Appeal's recent decision confirms that despite my attempts to regularize the proceedings, the proceedings had been commenced without proper compliance with the 1998 Act. My understanding of earlier authorities including Attileah v State Rail Authority [2005] 62 NSW LR 439 indicated that procedural irregularities need not be invoked, however the recent decision in Dickinson [v Chapman [2022] NSWCA 2] dictates that such procedural deficiencies cannot be cured and are liable to be dismissed, should such application be made. Rather than litigate the matter to conclusion, I thought it was preferable to commence fresh proceedings and to seek to discontinue the current proceedings on behalf of the Plaintiff."
5. This retrospective attempt to regularise the 2016 proceedings is relied upon to regularise the 2022 proceedings. However, the simple fact is that the pre-filing statement dated 21 September 2016 was, in essence, a nullity, but insofar as the Plaintiff seeks to rely upon it in respect of the 2022 proceedings, there is a prejudice to the First Defendant. Under s 316 of the 1998 Act, a defendant must, within 28 days after a pre-filing statement has been served on a defendant, respond to the pre-filing statement by accepting or denying liability, either in whole or in part, and serve on the proposed Plaintiff a defence to the claim setting out such particulars of the defence and evidence that the defendant would rely on to defend the claim as the rules of what is now the Personal Injury Commission may require.
6. Although s 28-day period is provided for in the chapeau to s 316(1), a later provision is that a defence can be filed after 28 days, but, in s316(2), it is provided that, if a defendant fails to respond to the pre-filing statement as required by that section within 42 days after it is served upon the defendant, the claimant can commence Court proceedings for the recovery of work injury damages. However, if the defendant fails to respond within 42 days, it cannot file a defence. The defendant did not reply to the pre-filing statement dated 21 September 2016. More than 42 days have elapsed since it was served on 21 September 2016. The First Defendant cannot now reply to it. Therefore, the First Defendant would suffer irreparable damage if the 2022 proceedings were permitted to proceed against him. In the circumstances, I must grant the relief sought by the First Defendant in par [3] of the Notice of Motion filed on 21 July 2022. For those reasons, matter number 2022/00180644 is dismissed. 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: 18 November 2022