Hall v Ecoline Pty Ltd T/As Treetop Adventure Park

Supreme Court of NSW|2018-11-06|Before: Davies J

Judgment

The plaintiff was injured in an accident on 6 November 2009. At the time he was an employee of Mars Australia Pty Limited, the second defendant, and was participating in a team-building exercise operated by Ecoline Pty Ltd t/as Treetop Adventure Park, the first defendant.
The issue arising in the proceedings and on the present application concerns precisely how the accident happened that resulted in the plaintiff injuring his back. What does not appear to be in dispute is that the plaintiff was above the ground and was moving from tree to tree. The exercise involved a plank or planks of wood, but whether the plank or planks were being carried or stepped on appears to be part of the dispute. In any event, the plaintiff sustained an injury to his lower back during the performance of the exercise.
On 27 November 2009 the plaintiff lodged a worker's injury claim form. The plaintiff thereafter appears to have received conservative treatment for his back until December 2012 when he experienced an exacerbation of the back pain. In 2013 an MRI showed a number of issues at the L2/3, L4/5 and L5/S1 levels of his spine.
On 4 August 2013 the plaintiff underwent an L5/S1 posterior and interbody fusion at the expense of the workers compensation insurer. On 27 May 2015 he was assessed by Dr Millons on behalf of the second defendant and found to have a whole person impairment of 20%. That was accepted by the second defendant. The plaintiff made a claim for lump sum entitlements and they were paid in July 2015. A mediation was held on 8 April 2016 but was unsuccessful.
On 11 June 2016 the plaintiff filed a statement of claim against both defendants. A defence was filed by the second defendant on 14 June 2016 and by the first defendant on 19 August 2016.
It is necessary to say something now about the provisions of the legislation that govern claims for damages by injured workers, because the motion with which this judgment is concerned seeks the leave of the court to overcome two impediments to the present claim proceeding. The first impediment is that the claim was commenced more than three years after the injury, contrary to s 151D of the Workers Compensation Act 1987 (NSW) ('WC Act'). The second impediment concerns alleged inconsistency between the pleading in the statement of claim, and what had been included in a pre-filing statement served pursuant to s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('WIM Act').

Legislation

The legislative provisions set out below show the procedure that must be followed before a claim for work injury damages such as the present can be brought and pursued.
The WC Act relevantly provides: 151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017. 151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D: (a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D. (a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or (a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or (a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or (b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current. (2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first. (3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act. (4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker. (5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable. (6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias. … 151H No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together. (2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and (b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and (c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%. Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other. (3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. (4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. …
The WIM Act relevantly provides: 254 Notice of injury must be given to employer (1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury. (2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section. (3) Each of the following constitutes special circumstances: (a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice, (b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause, (c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, (d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act. … 255 How notice of injury is given (1) A notice of injury must state: (a) the name and address of the person injured, and (b) the cause of the injury (in ordinary language), and (c) the date on which the injury happened. (2) A notice of injury may be given orally or in writing. (3) If there is more than one employer, a notice of injury may be given to any one of those employers. (4) A notice of injury is taken to have been given to an employer: (a) if it is given to any person designated for the purpose by the employer, or (b) if it is given to any person under whose supervision the worker is employed. (5) A written notice of injury may be served by delivering it to, or by sending it by post to, the residence or any place of business of the person on whom it is to be served. (6) If the regulations so require (and despite anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations. … 260 How a claim is made (1) A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines. (2) The Workers Compensation Guidelines may make provision for or with respect to the following matters in connection with the making of a claim: (a) the form in which a claim is to be made, (b) the manner in which a claim is to be made, (c) the means by which a claim may be made, (d) the information that a claim is to contain, (e) requiring specified documents and other material to accompany or form part of a claim, (f) such other matters as may be prescribed by the regulations. (3) Without limiting this section, the Workers Compensation Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker's medical condition or treatment relevant to the claim. (4) The Workers Compensation Guidelines can also provide for any of the following matters in connection with the making of a claim: (a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced), (b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived, (c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times. (5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style. (6) Except to the extent that the Workers Compensation Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer. (7) The Workers Compensation Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification. … 262 Time within which claim for work injury damages must be made Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made. … 280A Claim for lump sum compensation a pre-condition to damages claim A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages. 280B Lump sum compensation to be paid before damages recovered (1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. (2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid. Note. This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because section 151A of the 1987 Act would prevent the payment of compensation after damages are recovered). … 315 Requirement for pre-filing statement before commencing court proceedings (1) 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 Rules may require. Note. Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages. (2) The pre-filing statement cannot be served unless: (a) the person on whom the claim is made wholly disputes liability for the claim, or (b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or (c) the person on whom the claim is made has failed to determine the claim as and when required by section 281. Note. The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 74 requires notice of a dispute as to liability to be given. 316 Defendant must respond to pre-filing statement (1) The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by: (a) accepting or denying liability (wholly or in part), and (b) (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Rules may require. Note. A defence can be filed after 28 days but after 28 days the claimant can refer the claim to mediation under Division 4. (2) If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages. Note. If the defendant fails to respond within 42 days, the defendant is prevented from filing a defence (see section 318) and the claimant can proceed to obtain summary judgment on the question of liability. If the defendant responds to the pre-filing statement within 42 days, the matter is required to proceed to mediation under Division 4 before court proceedings can be commenced. 317 Defective pre-filing statement (1) The defendant is not entitled to assert that a pre-filing statement served by the claimant is defective (by reason of incompleteness or otherwise) unless the defendant has notified the claimant, giving details of any alleged defects, within 7 days after the pre-filing statement is served by the claimant. (2) A dispute as to whether a pre-filing statement served by the claimant is defective may be referred to the Registrar for determination. (3) The Registrar may give a direction to the claimant as to the action necessary to cure any defect in the pre-filing statement served by the claimant. If the claimant fails to comply with the Registrar's direction within the time allowed for compliance, the pre-filing statement served by the claimant is taken not to have been served. Note. The effect of such a failure is that the claimant must serve the pre-filing statement again. (4) If the documents and information that comprise the pre-filing statement are furnished to the defendant at different times, the pre-filing statement is not considered to have been served on the defendant until the last of the required documents and information is served. 318 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.

The claim

On 17 July 2015 the plaintiff served on the second defendant a pre-filing statement dated 30 June 2015 pursuant to s 315 of the WIM Act. That statement relevantly said this: 2. At all material times, the Defendant employed the Plaintiff to carry out work as an operations technician, during which employment he was instructed to participate in a team building exercises, requiring the Plaintiff to lift planks of wood and transport them from tree to tree ("the exercise"). … 5. On 6 November 2009, the Plaintiff was participating in the exercise, when he was required to lift the plank of wood and twist his body in the direction of where the planks were to be transported, thereby causing him to suffer severe loss and damage. … 7. PARTICULARS OF NEGLIGENCE AND/OR BREACH OF STATUTORY DUTY (a) By its servants and/or agents, failing to provide a safe system of work, the system likely to lead to a risk of injury, it requiring the Plaintiff to lift, twist and transport planks of wood ("the risk"). (b) By its servants and/or agents, failing to properly instruct the Plaintiff, in the manner of the task, to reasonably ensure the Plaintiff was not exposed to the risk. (c) By its servants and/or agents, failing to provide adequate supervision to the Plaintiff, such supervision likely to have prevented the circumstances of the risk. (d) By its servants and/or agents, failing to provide adequate equipment to complete the exercise, such equipment likely to have prevented the risk. (e) By its servants and/or agents, failing to carry out such inspections as were reasonably required to ensure the elimination of the risk. (f) By its servants and/or agents, breach of the provisions of the OHS and/or its regulations, insofar as the Defendant, as controller of the system and place of work, failed to identify, control and eliminate the risk of injury as described in paragraphs 7 (a)-(e) above. (emphasis added)
The statement of claim filed in the District Court on 11 June 2016 relevantly pleaded: 2. At all material times the Second Defendant was: ... b) employed the Plaintiff during a team building exercises at the premises of the First Defendant, including requiring the Plaintiff to move from tree to tree using planks of wood for support, using a harness. … 4. On 6 November 2009, the Plaintiff was participating in a (sic) activity designed and maintained by the Second Defendant, at the direction of the Second Defendant, when he was required to manoeuvre and/or lift and/or twist a plank of wood to transport himself from tree to tree, when he lost his footing, causing him to suffer severe, loss and damage. … Particulars of negligence and/or breach of statutory duty and/or statutory warranties as against the First and/or Second Defendants, jointly and/or concurrently 6. (a) By their servants and/or agents, failing to provide a safe activity, the activity likely to lead to a risk of injury, as it required the Plaintiff to manoeuvre, and/or lift and/or twist a plank of wood to transport himself from tree to tree, with a risk of falling ("the risk"). (b) By their servants and/or agents, failing to properly instruct the Plaintiff on how to complete the activity, such instructions likely to have prevented the risk. (c) By their servants and/or agents, failing to carry out such observations and inspections as were reasonably required, to ensure the Plaintiff was not exposed to the risk. (d) By their servants and/or agents, failing to provide adequate warning to the Plaintiff of the risk of manually moving the woods, such as would alert the Plaintiff of the risk. (e) By their servants and/or agents, failing to provide adequate supervision to the Plaintiff, such supervision likely to have prevented the circumstances of the risk. (f) By their servants and/or agents, failing to provide adequate equipment to complete the exercise, such equipment likely to have prevented the risk. (g) By their servants and/or agents, breach of the provisions of the OHS and/or OHSR, insofar as the Defendants, jointly and/or concurrently, as controllers of the system and place of work, failed to identify, control and eliminate the risk of injury as described in paragraphs 7 (a)-(f) above. (emphasis added)
The second defendant in its defence filed 14 June 2016 relevantly pleaded: 4. As to paragraph 4 of the Statement of Claim, the Second Defendant denies the Plaintiff has met the threshold in s 151H of the Workers Compensation Act 1987 in respect of an injury based upon him losing his footing on 6 November 2009. 5. As to paragraphs 4, 6 (a) to (g) and paragraph 8 (m) of the Statement of Claim, the Second Defendant say the Plaintiff 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 Plaintiff, except with leave of the Court section 318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998. … 16. In answer to the whole of the Statement of Claim the Second Defendant says that the Plaintiffs claim is brought out of time having regard to Section 151D of Workers Compensation Act 1987.

The plaintiff's notice of motion

It may be observed that, although the second defendant raised the matter of the issue contained in s 318 of the WIM Act and the limitation period in s 151D of the WC Act, it took no steps to strike out the statement of claim on either basis. The issue has now only arisen for consideration because on 24 May 2018 the plaintiff filed a notice of motion seeking the following orders: 1. That the plaintiff be granted leave to commence these proceedings, out of time, nunc pro tunc, pursuant to s 151D of the Workers Compensation Act 1987 (NSW). 2. That this motion be heard and determined at the same time as the trial of issues at hearing.
No affidavit in support of the notice of motion was filed. When it came before the Registrar on 1 June 2018 it was, by consent, stood over to 27 July 2018. On that day the parties handed short minutes of order to the Registrar and asked him to make the following orders by consent: 1. Plaintiff is to file and serve an amended notice of motion to include any other order which might be required to advance or validate that claim on or before 10 August 2018. 2. Plaintiff to file and serve any affidavit evidence upon which he intends to rely on or before 21 September 2018. 3. The first and second defendant to file and serve any affidavit evidence in reply on or before 2 November 2018. 4. The notice of motion be listed for hearing on a date suitable to the Court after 2 November 2018.
The Registrar fixed the motion for hearing on 6 November 2018, provided for the filing and service of submissions by each of the parties on the date they were due to serve affidavits, and directed that the plaintiff was to file and serve any submissions in reply by 12 noon on 5 November 2018.
The plaintiff did not file an amended notice of motion until 7 September 2018. The orders sought in that amended notice of motion were these: 1. That the plaintiff be granted leave to commence these proceedings, out of time, as against the second defendant nunc pro tunc, pursuant to s 151D of the Workers Compensation Act 1987 (NSW). 2. That the plaintiff be granted leave to rely upon the statement of claim filed in the proceedings pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
The prayer contained in the original notice of motion, that the motion be heard and determined at the same time as the trial of issues at hearing, was struck through, to show that it was not being pursued.
The plaintiff filed and served an affidavit of the plaintiff sworn 3 September 2018 and an affidavit of the plaintiff's solicitor sworn 6 September 2018. The affidavit of the plaintiff's solicitor exhibited what appears to be almost the entirety of his file.
On 2 November 2018, in accordance with the directions made by the Registrar, the second defendant served its submissions and an affidavit sworn by its solicitor. The material in the affidavit tended to show that the late filing of the statement of claim had caused actual prejudice to the second defendant in relation to the ability of the second defendant to obtain documents or witnesses with a recollection of what occurred in 2009.
On 5 November, and in accordance with the directions made by the Registrar, the plaintiff served submissions in reply. He also served a further amended notice of motion on which he sought to rely at the hearing of 6 November. The only difference between the amended notice of motion and the further amended notice of motion was that the prayer for relief contained in the original motion, that the motion be heard and determined at the same time as the trial of the issues at hearing, was reinstated in the further amended notice of motion.

The hearing of the notice of motion

At the outset of the hearing of the notice of motion, Mr Hart of counsel for the plaintiff sought, pursuant to the reinstatement of that prayer for relief in the further amended notice of motion, that the whole of the hearing set down before me be dealt with at the outset of the final hearing of the proceedings. One of the bases put forward for that course was to avoid a doubling up of cross-examination which would in the first instance be relevant, particularly, to the application to extend time under s 151D, and thereafter in relation to the substantive claim.
In the alternative, Mr Hart sought an adjournment of the hearing of the notice of motion because he said that the service of the defendant's solicitor's affidavit detailing actual prejudice on the part of the second defendant had taken him by surprise, and the plaintiff needed time to respond to it. In particular, the plaintiff needed to find the author of the second defendant's document entitled "Register of Injury/Illness Form", with a view to exploring with that person and a person named as a witness on that Form, Colin Price, how the accident had happened.
I heard argument from both counsel about the appropriate course having regard to the issue of cross-examination and to the recent service of the evidence concerning actual prejudice. Counsel for the second defendant did not oppose the motion being adjourned for hearing to a later date because of the service of that evidence, but resisted the notion that the relief in the notice of motion should be dealt with at the final hearing. In the alternative, he submitted that, even if the extension under s 151D should be determined at the final hearing, the relief sought under s 318 should be dealt with in advance of the final hearing because it was a discrete point.
I enquired of the parties if there was any reason that the issue arising under s 318 could not be dealt with without the need for any adjournment. It seemed to me that the s 318 issue would not involve the need for any form of cross-examination of the plaintiff. Counsel agreed that the s 318 issue could be dealt with by submission alone. Accordingly, that was the course that I followed.
It was also accepted by the parties that if I found the s 318 issue contrary to the interests of the plaintiff, the statement of claim should be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW), notwithstanding that the second defendant had not filed a notice of motion to that effect. The second defendant made an oral application to that effect under r 13.4.
Accordingly, unless I determined the s 318 issue in the plaintiff's favour, it would not be necessary for me to determine whether or not the application under s 151D should proceed at a date prior to the trial or at the trial itself. For the reasons which follow, I find that s 318 has been contravened by the plaintiff by reason of the statement of claim he filed being materially different from the proposed statement of claim that formed part of the pre-filing statement. I also find that the discretion contained in s 318(2) is not enlivened for the reasons which follow.

The issue under s 318 WIM Act

The plaintiff made three submissions. The first was that the difference between the pre-filing notice and the statement of claim was immaterial in terms of the operation of s 318. Secondly, it was submitted that, even if it was material, the second defendant knew about what is pleaded in the statement of claim from the very beginning. Thirdly, the plaintiff submitted that the second defendant acquiesced in the matter, despite there being legislative provisions that it could have invoked at a much earlier time. The plaintiff submitted that the particular legislative provision was s 317 of the WIM Act. The plaintiff submitted that if the second defendant considered that the pre-filing statement was defective, it ought to have notified the claimant in accordance with that section, and moved to strike it out.
It is first necessary to deal with the material relied upon by counsel for the plaintiff to demonstrate that the second defendant knew from the beginning the way the accident occurred. His first submission, that the description was not materially different for s 318 purposes, appeared to be closely related to that matter.
On 27 November 2009 the plaintiff completed a worker's injury claim form. Section 2 headed "Incident and worker's injury details" read as follows: What is your injury/condition, and which parts of your body are affected? Lower back pain. What happened and how were you injured? Tree climbing on offsite day. What task/s were you doing when you were injured? Moving on plank from 1 tree to another.
The plaintiff served its pre-filing statement on 17 July 2015. I have set at [10] above the description of the accident which appeared in paragraphs 2 and 5 of that document.
On 29 July 2015 the solicitors for the second defendant wrote seeking particulars of the claim. Those particulars were provided on 19 August 2015. The following questions and answers are relevant: 4. What were the dimensions of the planks of wood that your client was moving at the time of his injury, including its (sic) weight? To the best of the claimant's ability he estimates that the plank was 100ml - 150ml (sic) wide and made of timber. The claimant is not aware of the exact weight of the plank. 5. How far did your client have to lift and move the said planks of wood he was moving at the time of his injury? To the best of the applicant's recollection 3-4m between 2 platforms positioned at 2 separate trees. 8. Did anyone from Tree Tops Adventure Park provide your client with any induction, instructions or training prior to the commencement of any activities at the site? If so, who gave the induction, instructions or training to your client and what did it consist of. The group of participants was shown how to operate a harness and carabiner so as to be able to move through the different sections of the course unaided, they were otherwise provided no training or instruction. The plaintiff is not aware of the name of the member of staff who instructed the group.
On 17 October 2015 the second defendant served a s 74 dispute notice. Mr Hart relied on a part of this Notice to show that the second defendant always understood how the accident happened. He relied on the following in the Notice: a. You allege that you suffered an injury to your lumbar spine when you were required to lift planks of wood and transport them from tree to tree while participating in an offsite team building exercise on 6 November 2009. … You allege that you are instructed to participate in a team building exercise and you were required to lift planks of wood and transport them from tree to tree. Mars denies you were instructed to participate in the team building exercise and such participation was not mandatory. Mars denies you were required to lift planks of wood and transport them from tree to tree as part of the team building exercise. On the day in question, you were participating in a team building exercise at Treetops Adventure Park (Treetops). The team building exercise involved participation in an obstacle course at Treetops. There was one obstacle on that course which involved a plank of wood. This obstacle involved a plank of wood suspended by a length of rope, with the rope being positioned off centre. The plank of wood hung with one end higher than the other. In order complete this obstacle, participants were required to stand on the higher end of the plank of wood to raise the lower end in order build a bridge between the two platforms. This was basically a balancing exercise. There was no requirement for you to lift planks of wood or transport them between the various platforms.
A medical report by Dr Erin Roane dated 8 December 2009 served with the pre-filing statement said: Scott reported that he was participating in abseiling and "twisted" his back while moving on a platform.
A medical report by Dr Richard Ferch dated 27 April 2010, also served with the pre-filing statement, said: As you know, Scott injured his back [indecipherable number] months ago when he was twisting and lifting some planks.
In a report from Associate Professor Kleinman dated 18 November 2014, also served with the pre-filing statement, the following appears: One of the activities involved shifting a plank of wood from tree to tree and as he lifted the plank of wood he felt severe pain in his lower back.
In an Earning Capacity Assessment dated 7 October 2015 served on the second defendant, the Executive Summary said this: According to his recollection of the injury, he attended morning meetings with management and participated in an obstacle course, where he was required to traverse through trees on suspended planks and ropes. He advised he was harnessed to a (sic) overhead cable and as he was moving from one plank to another, having twist and bend to manoeuvre across the obstacle, he felt the plank "drop" and as a result he felt a jarring of his lower back.
In the s 66 claim served in March 2015, the following appears: 1(c) Cause of injury: Worker twisted back and trunk awkwardly to complete a manoeuvre. The plaintiff relies, in conjunction with that document, on the complying agreement under s 66A which noted an agreement of 20% whole person impairment for the lumbar spine with 1% whole person impairment for scarring.
Finally, Dr Millons examined the plaintiff for the second defendant. He assessed his whole person impairment at 20%. In his report of 27 May 2015 Dr Millons said: On 6 November 2009, a Friday, Mr Hall was taking part in a team building exercise from his workplace. They were out in the bush between trees. He was up on a flying fox. He had to shift a plank from tree to tree to traverse an area. As he lifted the plank and twisted with it, he was hit with a severe pain in his lower back which radiated through his right lower limb to the calf.
In his submissions, Mr Hart took me to the pre-filing statement at p 59 of the Exhibit to the affidavit of the plaintiff's solicitor and said: …[R]elevantly it's at para 5 on p 59 - and your Honour would, in my submission carefully read that because on 6 November 2009 the plaintiff was participating in the exercise, which was pleaded in para 2, when he was required to lift the plank of wood and twist his body in the direction of where the planks were to be transported, thereby causing him to suffer severe injury, loss, and damage. That is clearly not what occurred, in my submission, and there is no arguable defence to it being a misdescription.
However, Mr Hart submitted that the claim form, the s 66A agreement, the histories in the medical evidence and the second defendant's actual knowledge, all showed that the plaintiff lost his footing, fell a distance and jarred his back.
In my opinion, the statement of claim is materially different from the proposed statement of claim that formed part of the pre-filing statement. The essential difference is the description of the cause of the injury to the back. Paragraph 5 of the pre-filing statement said that the requirement to lift the plank of wood and twist the plaintiff's body in the direction of where the planks were to be transported caused him to suffer the loss and damage. That was reinforced by paragraph 7(a) which defined the risk of injury as the requirement to lift, twist and transport the planks of wood. In the filed statement of claim, paragraph 4 repeated that the requirement was to lift, twist and transport the wood, but then asserted that it was the loss of his footing which caused him to suffer the loss and damage. If there was any doubt, paragraph 6(a) defined the risk as the risk of falling rather than the risk from a requirement to lift, twist and transport.
It is clear from the statement of claim that the alleged mechanism of the injury was the fall rather than the twist from the requirement to lift and transport the wood. The accident described in the filed statement of claim would require a different investigation from that described in the proposed statement of claim. The actual mechanism of the injury is likely to be different because injury from a fall would result either from an impact or a severe jarring if the fall was broken in some way, perhaps by a harness as appears to be asserted in some documents.
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. Mr Hart appeared to concede that the description in the pre-filing statement, which was consonant with the description in all of the other documents except the statement of claim, was wrong. He submitted, however, that it was not materially different because there was no dispute that the injury occurred in the course of a team-building exercise, conducted above the ground between trees, involving a plank or planks of wood, with the plaintiff secured by a harness. As a description of the activity being performed, that is correct, but there are two essential matters not made clear from that description. The first is whether the plaintiff was carrying a plank or was required to walk on the plank. The second is the plaintiff's fall.
The second issue is whether leave should be granted to file the statement of claim notwithstanding that it is materially different from the proposed statement of claim. Sub-section (2) provides that leave is not to be granted unless the material concerned was not reasonably available to the party when the pre-filing statement was served, and the failure to grant leave would substantially prejudice the party's case.
Judge Taylor DCJ drew attention to the unsatisfactory drafting of s 318(2) in Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 at [39]-[44]. I agree with his Honour at [42] that the "material concerned" must refer to material suggestive of the different claim that the plaintiff now seeks to maintain. However, where the "material" concerns what actually happened in the accident, and it is not here submitted that the plaintiff was not aware at the time of how the accident occurred, the material concerned must have been available to the plaintiff. That is, the plaintiff must have known how the accident happened. In those circumstances the plaintiff here does not satisfy paragraph (2)(a) with the result that the discretion in sub-s (2) is not enlivened.
Section 318 does not, in terms, allow any exception on the basis that the other party knew of the "material concerned", so that no prejudice can be demonstrated against that party. However, I would accept that if the plaintiff was able to demonstrate some form of estoppel or acquiescence on the part of the second defendant, the provisions of s 318(1) may not operate to the benefit of that defendant. However, this was not a matter argued at the hearing, and I express no firm view about it.
As may be seen from the material I have set out earlier, there is nothing that suggests any knowledge on the part of the second defendant that the accident occurred in the way now pleaded in the statement of claim. Indeed, a survey of that material tends to indicate that the very first time the plaintiff asserted that he injured his back by a fall was in the statement of claim.
The most supportive document the plaintiff could point to in the documents was that contained in the executive summary of the Earning Capacity Assessment where the plaintiff said "he felt the plank 'drop' and as a result he felt a jarring of his lower back". In my opinion, it could not inferred from that description that the plaintiff fell or lost his footing as the statement of claim describes.
Since I have found that there was no basis for the second defendant to know or understand that the injury occurred as a result of a fall, it is not strictly necessary to consider the plaintiff's argument that the second defendant failed to attempt to strike out the pre-filing statement on the grounds that it was defective under s 317. The plaintiff's submission concerning this matter was difficult to understand, so I should set it out from the transcript: My submissions (sic) is there would be no entitlement, your Honour, to bring the proceedings at all or serve the prefiling statement if the compensation they had paid on the injury as claimed didn't entitle the plaintiff to serve a prefiling statement, because, your Honour, the sequence is you make a claim for injury, if you receive or agree or get awarded whole person impairment that opens the gate, having served a claim for injury damages that was not relating to the injury that they accepted, which is clearly what they're saying here, then it was defective and should have been struck out. … But the point I'm making, your Honour, if I could just focus this part of it, if the claim was defective, in my submission, it must have been, because what they're alleging is, "The injury that we paid this compensation for occurred in the way we've described in our s 74 statement or response," this is prior to litigation, "It must have been defective, it mustn't have entitled him to sue at all.
The assumption behind the submission must be that the section was worded widely enough to cover the situation where the other party knows that what is contained in the pre-filing statement is not correct. The success of the submission in the first instance turns on the meaning of the word "defective". Section 317(1) gives some clue as to what is meant by defective as expressed in the sub-section. That is, if the statement is incomplete it is regarded as defective.
The Macquarie Dictionary gives as the meaning of defective: Having a defect; faulty, imperfect. Similarly, it defines "defect" as: A falling short; a fault or imperfection, want or lack, especially of something essential to perfection or completeness; deficiency.
In my opinion, the word "defective" is concerned with form and not substance. The plaintiff's submissions focused on the substance of what was contained in the pre-filing statement. The idea that the section could be directed to the correctness or otherwise of what was contained in the statement highlights the difficulty of that being the correct construction of the section. In many or most cases, the defendant would be unaware of the truth or otherwise of the substance of what is set out. In any event, the defendant is entitled to rely on the proposed claim in the pre-filing statement as accurately reflecting the case the plaintiff will make. That is surely the legislative intention behind s 318. Even if the second defendant believes the injury occurred in a different way, that would not mean that the pre-filing statement was defective as opposed to asserting wrong facts or making wrong allegations.
In my opinion, s 317 has no operation for that reason. However, even if it did, there is no evidence in the present case that the second defendant knew of the position the plaintiff came to maintain in the filed statement of claim.
The submission also seems to be suggesting, in addition to the supposed knowledge of the second defendant about how the accident really happened, that if the second defendant had paid compensation (e.g. under s 66 WC Act) on the basis of a belief that the accident happened in one way, it was entitled to strike out a pre-filing statement where it had ascertained that the accident did not happen in the way the pre-filing statement asserted.
This submission appears to confuse the second defendant's obligation to pay compensation where a person is assessed as having a permanent impairment of 10% arising out of or in the course of employment on the one hand, and a determination of precisely how the injury was sustained on the other hand. The payment of compensation is not in that way directly concerned with the description of the accident.
The submission also seems to assume that the second defendant became aware of the actual mechanics of the accident after it paid compensation but before or at the time of the service of the pre-filing statement. There is in fact no evidence that the second defendant knew that the accident was said to be a fall until the statement of claim was served.

Conclusion

As noted earlier, the parties accepted that if I determined that the statement of claim was materially different from the proposed claim in the pre-filing statement, the proceedings should be dismissed against the second defendant pursuant to UCPR r 13.4. In the circumstances, no reasonable cause of action is disclosed.
Accordingly, I make the following orders: 1. Dismiss the plaintiff's further amended notice of motion filed 5 November 2018. 2. Dismiss the proceedings against the second defendant pursuant to UCPR r 13.4. 3. The plaintiff is to pay the second defendant's costs of the proceedings.

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: 16 November 2018

Workplace Injury Management and Workers Compensation Act 1998(NSW)s 318, ss 254, 255, 260, 262, 280A, 280B, 315-318

Workers Compensation Act 1987(NSW)ss 66, 151D, 151DA, 151H

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