Hogan v Albury Wodonga Health

Category: Procedural rulings

Parties: Matthew Hogan (Plaintiff)
Albury Wodonga Health (Defendant)

Representation: Counsel:
L Morgan (Plaintiff)
J Ryan (Defendant)
Solicitors:
NEW Law Pty Ltd
Bartier Perry

File Number(s): 2024/00382194

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 7 February 2025 by the defendant, Albury Wodonga Health, seeking orders, in substance, that pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Act”), the plaintiff’s Statement of Claim filed on 15 October 2024 be struck out.

2. In support of the application, the defendant read the affidavit of Danny Khoshaba dated 11 February 2025. That affidavit annexed a number of documents which are relevant, including the pre-filing Statement of Claim, the response to the pre-filing Statement with the proposed Defence, and correspondence between the parties including, in particular, Annexure I, being an email setting out additions which have been made by the plaintiff to the pre-filing Statement of Claim in the Statement of Claim filed by the plaintiff on 15 October 2024.

3. The plaintiff opposed the orders sought in the Notice of Motion and read the affidavit of Peta Kava dated 2 April 2025. That affidavit annexed some of the material referred to in the pre-filing Statement when it was served by the plaintiff. See, in particular, the schedule of evidence to the pre-filing Statement.

4. The plaintiff seeks damages in negligence for psychological injuries said to arise from the defendant’s workplace, including alleged bullying and harassing conduct. The plaintiff was a senior nurse. Liability is denied.

5. The matter turns on the application of s 318 of the Act, which provides as follows:

“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.”

6. Many of the cases considered under that section of the Act relate to further affidavits or expert reports which have been served by a party not referred to in either the pre-filing Statement of Claim, or the pre-filing Defence. This is not one of those cases.

7. Here, the focus of the application turns on s 318(1)(a) of the Act, which prevents a claimant (here the plaintiff) from being 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”.

8. Accordingly, the question to be determined is whether the Statement of Claim that was filed is “materially different” from the proposed Statement of Claim that formed part of the pre-filing Statement served by the claimant.

9. Relevant to this matter is the recent decision of the High Court of Australia in Bird v DP (a pseudonym) [2024] HCA 41. In that case, the majority of the High Court gave a joint judgment in relation to the liability of a person for the conduct of others who were not employees in the strict sense of the first person, but were in a relationship commonly described as being “akin to employment”. The High Court made clear in that case that the legal position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but are instead, for example, independent contractors or in a relationship “akin to employment”: see at paragraph 5 and at paragraphs 63 – 66.

10. Accordingly, an entity may be liable to an employee either directly for failing to provide a safe system of work under a non-delegable duty of care or may be liable vicariously for the acts or omissions of employees in the course of their employment, but not for the acts and omissions of persons in a relationship “akin to employment”.

11. These issues are relevant to the proper analysis of the two pleadings in question in the present case.

12. It is also important to set out the particular principles which have been established by the courts in relation to the application of s 318 of the Act. I refer in particular to the following cases:

(a) Hall v Ecoline Pty Limited t/as Treetop Adventure Park [2018] NSWSC 1732; (b) Sohailee v City Projects & Developments Pty Limited [2019] NSWSC 1452; (c) Ljubicic v Heat and Control Pty Limited [2023] NSWSC 982.

13. In addition, there have been helpful decisions of this Court relating to s 318. See:

14. Petreski v The Ors Group Pty Limited [2019] NSWDC 417; and

15. Cromack v State of New South Wales [2024] NSWDC 320.

16. In addition, I note comments in appellate cases relating to the content of s 318. In Strasburger Enterprises Pty Ltd t*/*as Quix Food Stores v Serna [2008] NSWCA 354, Basten JA at [37] noted that the scheme in the Act involved “potential traps and strategic decisions for both parties”.

17. A summary of the relevant principles emerging from the authorities is as follows:

(a) The purpose of s 318 of the Act is to ensure that claimants and employers properly participate in the pre-filing process required by the Act. The claimant is required to put the defendant on notice of the particulars of the claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. That purpose is to assist in the process of resolution of the dispute prior to proceedings being pursued, and to ensure that the employer/proposed defendant has “proper, adequate and complete notice of the claim” that is, and will be, pursued by the injured employee. As Cavanagh J said in Sohailee v City Projects & Developments Pty Limited at [22], “the obligation to provide that notice is both ‘complimented or enforced’ by s 318 of the Act”; (b) The expression “materially different” in s 318(1)(a) must be given its ordinary, natural meaning, and must be interpreted in the context in which those words appear, having regard to the overall purpose of s 318 as I have indicated: Sohailee at [23]; (c) It is not necessary nor appropriate to substitute other words to give meaning to the expression: Sohailee at [23]; (d) Not just any difference will give rise to the application of s 318. The difference must be material: Sohailee at [23]; (e) “Whether there is a material difference between the two documents” in question “must depend on the facts in each case”: Sohailee at [23]; (f) As decided by Davies J in Hall v Ecoline Pty Limited t/as Treetop Adventure Park, a different mechanism of alleged injury, or an accident occurring in substantially different circumstances, would be a materially different pleading: Ecoline at [42]-[43]; Sohailee at [24]; (g) A pleading of a different cause of action would be a materially different Statement of Claim: Sohailee at [24]; Cromer, above, at [33]; (h) Raising a completely new allegation as to the conduct of the proposed defendant would be a materially different pleading: Sohailee at [24]; Cromer at [33].

16. As Cavanagh J said in Ljubicic, above, at [20], the threshold question in any analysis is one of fact which is whether the pleading filed is materially different to the draft Statement of Claim.

17. Mr Ryan of counsel, who appears for the defendant who is the applicant on the motion, submitted that the Statement of Claim which has been filed is materially different, particularly in the manner as set out in Annexure I to Mr Khoshaba’s affidavit, and he took me to the concluding phrase in paragraph 4 of the filed pleading. Mr Ryan submitted:

(a) That the reference to “vicarious liability” in paragraph 1 of the filed Statement of Claim and in the pre-filing Statement of Claim should properly be seen as merely reflecting the definitions set out in ss 150 and 250 of the Act, and not a separate pleading of vicarious liability in the present case in relation to the conduct alleged of the visiting medical officers referred to in paragraph 5(b) of the pleading; (b) Particular assistance is gained from the comments of Abadee DCJ in Petreski v The Ors Group Pty Limited, above, particularly at paragraphs 21 to 24, where Abadee DCJ rejected the submission that it was axiomatic that when a claimant brings a claim it means that the claim against the employer specifically contemplates that it is made on the basis of vicarious liability: at [24]. Abadee DCJ determined that the definition of “work injury damages” in ss 150 and 250 of the Act by including vicarious liability is “only an inclusive possibility that the claim against the employer may be one of vicarious liability”, not a necessary one. The difference in the current case, of course, is that there is an express reference in paragraph 1 of both pleadings to vicarious liability.

18. Mr Ryan submits that all the references to the visiting medical officers in the Statement of Claim could properly be read as referring to a liability in the defendant for the failure to provide a safe system of work by permitting visiting medical officers with the description in paragraph 5(b) of the Statement of Claim being involved in the defendant’s hospital, and thus rendering an unsafe system of work, not necessarily vicarious liability for their conduct. Of course, Bird v DP (a pseudonym) suggests that there would only be vicarious liability if such visiting medical officers were employees of the defendant.

19. Mr Ryan accepts that in Petreski v The Ors Group Pty Limited there was not an express mention of vicarious liability in the pleadings and thus the case is slightly different. However, he emphasises that paragraph 1 of both pleadings merely should be seen as referring to the definitions in the two sections of the Act I have referred to.

20. Mr Morgan submits that the inclusion of the words “vicarious liability” in paragraph 1 of each pleading expressly denotes a reliance on vicarious liability as opposed to direct liability, and accordingly, the additional words relied upon in the filed pleading do not make that pleading “materially different”.

21. In the present case, there clearly is a potential for two liabilities as I have indicated:

(a) A direct liability for the failure to provide a safe system of work; and (b) In the alternative, vicarious liability for the conduct of employees in the course of their employment.

22. As stated in the authorities, whether there is a material difference in the pleadings is a question of fact. It seems to me that, quite properly, the onus rests on the defendant as the applicant to establish that there is a material difference. I take into account the statement in the authorities that the purpose of s 318 is to ensure that defendants are aware of the case they have to meet as far as possible at the time of the pre-filing Statement to enable sensible discussions about resolution of the matter: Ljubicic, above, at [68].

23. The point for determination is a fine point. In the end, in my view, it turns primarily on paragraph 1 in the context of the pleadings. The material served, including in particular the expert report of Sharon Todd dated 15 January 2024, which is Exhibit PK2 to Ms Kava’s affidavit, refers in a number of places to the conduct of what are described variously as doctors or clinicians.

24. There is no express section of the Act referred to in paragraph 1 of the Statement of Claim. There is an express reference to “the acts, omissions and conduct of the defendant” and “those for whom the defendant is vicariously liable”. That reference seems to make a distinction between direct liability and vicarious liability. Taking that into account, and taking into account the purpose behind the legislation, it seems to me that the two pleadings do not raise a different mechanism of injury, a different cause of action, or fundamentally different facts. Further, paragraph 5 of both pleadings appears to make a distinction on the one hand between the work environment in which the plaintiff worked and the conduct of the visiting medical officers referred to.

25. Of course, following Bird v DP (a pseudonym), the defendant can only be responsible if there is vicarious liability for those persons who are employees.

26. Coming back to the central issue in dispute in the case, in my view, having regard to the inclusion of vicarious liability in paragraph 1 without a reference to specific provisions of the Act relied upon and referred to by Mr Ryan, I am not satisfied that the Statement of Claim filed, compared to the pre-filing Statement of Claim, is relevantly materially different. I would have to accept that all that was intended by the words in paragraph 1 was the inclusion of the liability pursuant to the sections as taken into account by Abadee DCJ in Petreski v The Ors Group Pty Limited. I am not able to be satisfied that that was the only intention in paragraph 1 of the Statement of Claim. The cause of action, in my view, relates to the whole of the conduct concerning the plaintiff’s employment at the hospital in question, being both the work environment and the conduct of others within that environment, and the conduct of the visiting medical officers alleged is specifically referred to.

27. For those reasons I am not satisfied that the order sought by the defendant in the present case should be made. I find as a matter of fact that there is no material difference between the two documents. Accordingly, the orders I make are:

28. In relation to the Notice of Motion filed on 7 February 2025:

29. The Notice of Motion is dismissed.

30. The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

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