Hall v Red Lea Chickens Pty Limited & Anor

Supreme Court of NSW|2007-11-12|Before: Malpass J

CITATION : Hall v Red Lea Chickens Pty Limited & Anor [2007] NSWSC 1253

DECISION : The Amended Direction dated 4 April 2007 is set aside. The proceedings are remitted back to the second defendant for determination according to law. The first defendant is to pay the costs of the proceedings.

CATCHWORDS : Injury - repetitive work and incident - defective Pre-filing Statement - ambit of jurisdiction

Supreme Court Act 1970 (NSW) LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CASES CITED : JC Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor [2007] NSWSC 342 Madden v Kingston Industries Pty Ltd [2005] NSWCA 440

Matthew James Hall (Pl) PARTIES : Red Lea Chickens Pty Limited (1st Def) The Registrar of the Workers Compensation Commission (2nd Def)

Mr S.G. Campbell SC / Mr D. Epstein (Pl) COUNSEL : Ms M. Allars (1st Def) (GIO) Mr G. Barter (1st Def) (Employers Mutual NSW Limited)

Stormer Lawyers (Pl) SOLICITORS : Workplace Law Pty Limited (1st def) Crown Solicitor (2nd Def) (submitting appearance)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER : Jennifer Robichaud as Delegate of the Registrar

6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30066/07 Matthew James Hall v Red Lea Chickens Pty Limited & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff was a chicken boner employed by the first defendant. He alleges that between May 1999 and 8 April 2004 he was required to engage in repetitive work (this has also been referred to as the nature and conditions of his employment). He alleges also that there was a change in the work system from November 2003. He further alleges that on 8 April 2004 he suffered injury when bending over to pick up a tub of chicken. A claim for work injury damages was made.

2 The plaintiff contemplates bringing proceedings for damages in the District Court. A threshold dispute was referred to an Approved Medical Specialist (the AMS). 3 The AMS had referred to him:- "Assessment of whole person impairment resulting from a frank injury at work on 8 April 2004 as it affects his lumber spine and left lower extremity".

He assessed a whole person impairment at 21%. It was expressed to be based on the frank injury of 8 April 2004 (he was found to have suffered a postero-lateral disc protrusion). 4 Following the giving of particulars concerning his work injury damages claim, the first defendant denied liability. By letter dated 21 December 2006, a Pre-filing Statement was served on the first defendant. It was in the form of a Statement of Claim. It came to be amended and a further document was served on 12 February 2007. 5 The plaintiff, in this Pre-filing Statement, looked both to the period of repetitive work and what happened on 8 April 2004 as the cause of his injury. These are identified therein as the causes of action relied on by him in respect of the injury suffered on 8 April 2004. 6 The Pre-filing Statement contained, inter alia, the following [at paragraph 6]:- "The plaintiff alleges that his vulnerability and pre-disposition to injury contributing to the injury of 8/4/04 was occasioned by the negligence and breach of statutory duty by the Defendant". 7 The first defendant responded to the Pre-filing Statement by alleging that it was defective. This dispute was referred to the second defendant for determination. 8 Ultimately, an Amended Direction was made. It bears the date of the original Direction (4 April 2007). It followed a telephone conference on 8 May 2007. It determined that the Pre-filing Statement was defective and contained a Statement of Reasons (the reasons). The reasons contained, inter alia, the following:- "9. In order to proceed the Plaintiff will need to make a claim that nature and conditions resulted in a WPI of 15% and only then can a pre-filing statement relying on nature and conditions be filed. Section 262 of the 98 Act says " Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made ". 10. In the alternative, the Plaintiff can amend the existing pre-filing statement by deleting any reference to nature and conditions." 9 On 3 July 2007, the plaintiff filed a Summons in this Court. It seeks discretionary relief by way of judicial review pursuant to s69 of the Supreme Court Act 1970 (NSW). The Summons seeks, inter alia, the setting aside of the determination made by the Registrar. 10 The hearing took place on 6 November 2007. The plaintiff and the first defendant were represented by Counsel. There were in fact two representations on behalf of the latter. There was a change of insurer from 30 June 2002. These parties have made written submissions, which have been supplemented by oral argument. 11 For present purposes, relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act) include the following:- "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."

And "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."

12 What is "defective" in the sense contemplated by s317 of the Act received consideration in JC Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor [2007] NSWSC 342. 13 In J C Equipment, the following was said:- "38 As earlier mentioned, the jurisdiction that is conferred upon the Registrar by s317 is a dispute as to whether a Pre-Filing Statement is defective (arising out of the notified alleged defects). Sub-section 1 provides assistance as to what "defective" may mean (by reason of incompleteness or otherwise). What appears in sub-section 1 accords with dictionary meanings given to "defective" (including "incomplete, imperfect, faulty")." 14 What is in issue between the parties in this case is whether or not the inclusion of the matter of the repetitive work made the Pre-filing Statement "defective". The case for the first defendant is that it alleges two separate injuries (one of which was caused by the repetitive work) and that only one of them (the injury on 8 April 2004) has been the subject of a claim for work injury damages and of a threshold dispute assessment.

15 Other relevant provisions (including ss151E and 151H of the Workers Compensation Act 1987 (NSW) and Parts 2, 6 and 7 of Chapter 7 of the Act) employ the concepts of "injury", "claimant" (which means, inter alia, a claimant for work injury damages) and "claim" (which means, inter alia, a claim for work injury damages that a person has made or is entitled to make). 16 Before proceeding further, I should mention certain aspects of the statutory scheme implemented by this legislation. 17 No damages may be awarded unless the injury results in a degree of permanent impairment; that is at least 15%. Court proceedings for the recovery of work injury damages cannot be commenced until a claim for damages has been made and a Pre-filing Statement has been served .

18 In the present case, a claim has been made for work injury damages. It was made by letter dated 7 June 2006. The particulars described the injury as, inter alia, injury to lower back causing L5/S1 disc prolapse and/or herniation. The threshold question has been determined in respect of such injury and it has been established that the degree of permanent impairment is sufficient for an award of damages. If the Pre-filing Statement is not defective, the plaintiff may commence court proceedings for work injury damages in respect of his claim. My consideration of the material has led me to the view that the Pre-filing Statement that was served on 12 February 2007 is not defective. 19 Both the plaintiff's claim and the assessment have been made in respect of the one injury (being the injury suffered on 8 April 2004). I consider that this injury may be regarded as what has been said to be a condition that may have resulted from both the repetitive work and the incident of 8 April 2004 (see, inter alia, Madden v Kingston Industries Pty Ltd [2005] NSWCA 440). In my view, it is the only injury alleged in the Pre-filing Statement. 20 Accordingly, I consider that the Registrar has erred and that an entitlement to relief by way of judicial review has been demonstrated. It seems to me, inter alia, that there has been misdirection involving the addressing of wrong issues. In the circumstances of this case, I am of the view that the discretionary power should be exercised in his favour. 21 For completeness, I should mention one further matter. In JC Equipment, it was neither necessary nor appropriate to express any final views on the ambit of the jurisdiction had by the Registrar pursuant to s317(2). In this case the position is somewhat similar. The plaintiff submitted to the jurisdiction of the Registrar and does not challenge jurisdiction in these proceedings. The first defendant does not raise any jurisdictional issue.

22 In these circumstances, the matter can be put aside. However, a concern may be raised as to whether "defective" was intended to be confined to what appears to be contemplated by subs (1) of s315 and "the Rules" (such as deficiencies concerning matters of particulars and evidence). 23 The Amended Direction dated 4 April 2007 is set aside. The proceedings are remitted back to the second defendant for determination according to law. The first defendant is to pay the costs of the proceedings. **********

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