James Burke v ABL Group Pty Limited t/as Authentic Bricklaying

District Court of NSW|2013-10-25

Introduction 1By its motion filed 31 July 2013, the defendant seeks orders pursuant to Part 23 of the UCPR that the plaintiff be compelled to attend within 14 days of notification, a medical examination with a Dr Wilding, Orthopaedic Surgeon as well as an examination and interview by an organization described as Earning Capacity Assessments. The defendant also seeks leave pursuant to section 318(1)(d) of the Work Injury Management and Workers Compensation Act, 1998 (WIM) that it be permitted to rely upon any reports obtained as a result of such attendances. 2These orders are opposed by the plaintiff. 3The cross-defendant's position was to abide by the order of the court. 4Mr Perla, of counsel, appeared for the defendant on the motion and Mr MacKenzie for the plaintiff. Ms King, solicitor, appeared for the cross-defendant.

The Substantive Proceedings and the Procedural History 9On 16 April 2013, the plaintiff filed a statement of claim against the defendant alleging that on 3 August 2010, whilst in its employ, he slipped and fell at a building site, sustaining injury alleged to be the result of the defendant's negligence. The defendant filed its defence on 5 June 2013, denying such negligence, pleading contributory negligence and not admitting the "plaintiff's injuries, loss and alleged damage." It also pleaded, inter alia, payments made by its workers compensation insurer, GIO General Insurance, as constituting a defence in the proceedings. On the same date, the defendant filed a cross-claim against the cross-defendant seeking contribution and/or indemnity against it pursuant to the relevant legislation on the basis that it was the head contractor at the relevant site. 10In the plaintiff's statement of particulars filed on the same day as his statement of claim, he alleges, inter alia, a severe injury to his mid back leading to a thoracic fusion which in turn has allegedly caused him to be unfit for his job as a bricklayer's labourer with the defendant from the date of his accident to date and through to the age of 65. It is common ground that under the relevant legislation, the plaintiff can only recover in the subject proceedings what are known as "work injury damages" which are limited to past and future economic loss. 11Exhibit A establishes that the plaintiff commenced lump sum workers compensation proceedings against the defendant in early November 2011 which were settled with the defendant's insurer in mid February 2012. Thereafter, by letter dated the 30 March 2012, the plaintiff's solicitors sent two letters to the defendant and one to its insurer, all by registered mail, giving detailed particulars pursuant to s282 of WIM of the claim for work injury damages that he intended to make against the defendant. Such documentation included a medical report from Dr Bodel and called upon the defendant and/or its insurer to determine the question of liability in accordance with WIM within two months of the date of the service and advised that if there was no response, the plaintiff's solicitors would file a "pre-filing statement" pursuant to section 315 of WIM. By e-mail dated 3 April 2012, the defendant's insurer acknowledged receipt of such correspondence including the claim for work injury damages. 12The plaintiff served its pre-filing statement on 4 February 2013 under cover of a letter that day, sent again by registered mail to the defendant's insurer. This letter indicated that the plaintiff proposed in the anticipated District Court proceedings to rely upon the documents served including refresher medical examinations, functional assessments and/or vocational assessments "to be undertaken" and such "further liability reports as may be necessary based upon the plaintiff's allegations". It would appear that the defendant's insurer quickly referred this correspondence to its solicitors, who responded by letter dated 14 March 2013 advising that they acted on behalf of the defendant through its insurer and enclosing its pre-filing defence which had annexed to it, inter alia, the "defendants schedule of evidence". This document referred to a medical report from Dr Wilding "to be provided following examination" and a vocational assessment report from Earning Capacity Assessments to be "provided following assessment", as well as to an expert's report as to liability "to be obtained". In addition, it also referred to the "balance of claim file from GIO General Ltd's Workers Compensation NSW Ltd once received". 13It was conceded by Mr Perla that no medical examinations were arranged by the defendant, or apparently its insurer, during the time that elapsed between receiving the plaintiff's s282 particulars and his pre-filing statement which is a period of some 10 months. In this regard, s282(2) requires a claimant to submit themselves for examination by a medical practitioner at the employer's expense as part of a claimant's requirement to provide "relevant particulars" pursuant to s282(1). It was ultimately the defendant's solicitors whom sent the plaintiff's solicitors notification for him to attend examinations with the doctors/organisations mentioned in the subject motion via letter on 9 April 2013. This was some 12 months after service of the plaintiff's s282 particulars. This caused a letter in response from the plaintiff's solicitors stating that they did "not understand why medical examinations had been arranged at such a late stage in the proceedings" and advising that they would advise their client that there was "no requirement to attend these medical examinations". By further letter dated 18 April 2013, the plaintiff's solicitors confirmed such advice had been given and of their belief that "the time for our client to be examined has long passed". They then requested the defendant solicitors "cancel the appointments" which was done. Another 3.5 months then elapsed before the defendant's solicitors filed the present motion.

The Legislation 14The scheme set up by WIM in relation to pre-filing statements is contained in Division 3 which is comprised of s 315 to s 318. These relevantly provide as follows: "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. ... 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. (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. 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. 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...." 15As at the time of the plaintiff's accident, the Worker's Compensation Commission Rules, 2010, were in effect. They were replaced by similar rules commencing on 1 July 2011. For the purpose of this matter, both sets of rules are relevantly the same. The 2010 version provides as follows: 17.3 Pre-filing statement (1) For the purposes of section 315 of the 1998 Act, a pre-filing statement is to consist of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and other documents required by the Workers Compensation Acts and these rules. (2) If the defendant is an employer (but not a self-insurer), the claimant must serve the pre-filing statement on both the employer and the employer's insurer. 17.4 Material to be served with pre-filing statement For the purposes of sections 315 and 318 of the 1998 Act, a claimant for work injury damages must serve with the pre-filing statement all information and documents upon which the claimant proposes to rely including: (a) any notification provided to the claimant as required by section 281 (2B) of the 1998 Act that the degree of permanent impairment of the injured worker resulting from the injury is accepted as being sufficient for an award of work injury damages, or (b) if the dispute has been referred to an approved medical specialist for assessment of permanent impairment, the medical assessment certificate issued by the approved medical specialist in accordance with section 325 of the 1998 Act. 17.5 Pre-filing defence (1) In accordance with section 316 of the 1998 Act, a pre-filing defence is to consist of a copy of the defence intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and documents required by the Workers Compensation Acts and these rules. (2) Without leave of the Commission, the failure of a worker to notify of an injury as and when required by the Workers Compensation Acts may not be raised as an issue in the pre-filing defence served by the defendant if that issue has not been included in the notice given in accordance with section 74 of the 1998 Act. 17.6 Material to be served with pre-filing defence For the purposes of sections 316 and 318 of the 1998 Act, the defendant must serve with the pre-filing defence all information and documents upon which the defendant proposes to rely. 16It is clear that the overall scheme of the Act is to require the parties to have their respective cases prepared at an early stage and to make early, full disclosure thereof to facilitate quick resolution: see Basten J.A. in Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354 at [37]; Bell J.A. (as she then was) in Papercounters Pty Ltd v Jessop [2009] NSWCA 1 at [49] and [52]; the Second Reading Speech of the Worker's Compensation Legislation Further Amendment Bill (Legislative Assesmbly, Hansard, 28/11/2001) 18961 (extracted by Bell JA at [38] of Jessop). 17Whilst there is some doubt as to exactly what needs to be disclosed to comply with these provisions (see my decision in Hueston v Central Coast Leagues Club, Unreported, 13/5/2011), it was not argued by Mr Perla that giving notice of the future service of medical or other experts reports which are not yet in existence constituted "disclosure" for the purpose of complying with s318(1)(d) of WIM. 18The real issues argued before me were whether the "material concerned was not reasonably available" to the defendant when its pre-filing defence was served and whether a failure to grant the leave sought "would substantially prejudice" the defendant's case. There was no issue that the onus under s318(2) in establishing both these matters fell on the defendant. Further, the argument proceeded on the basis that if I declined to grant the leave sought pursuant to this subsection, I would not need to consider that part of the defendant's motion seeking that the plaintiff be ordered to attend the relevant examinations.

The Parties' Arguments 19On behalf of the defendant, Mr Perla argued in his written submissions that "none of the evidence upon which the defendant now seeks leave to rely was reasonably available to it as at 14 March 2013 when the pre-filing defence was service." When pressed as to what this meant, Mr Perla argued that such evidence was not "reasonably available" as at that date simply because neither the defendant nor its insurer had then obtained it. When I reminded Mr Perla that the word "available" in s318(2)(a) is preceded by the word "reasonably" which must be given some meaning, he stated from the bar table that quite often s282 particulars are provided outlining an intended claim for work injury damages which is ultimately never made and that it is, apparently, common practice for employers and their insurers to await the service of a pre-filing statement before having a claimant medically assessed. He also pointed out that the plaintiff's own pre-filing statement referred to evidence as not yet obtained, thereby implying that this practice was apparently commonplace not only in relation to employers and their insurers but also with respect to claimants themselves. 20As to the issue of prejudice, in his written submissions Mr Perla submitted that "there would be insurmountable prejudice suffered in these proceedings if (the defendant) is not granted leave to rely upon the evidence from Dr Wilding and the ECA." He further submitted that in "contrast, there can be no prejudice suffered by the plaintiff if the defendant is granted leave" and referred to the fact that no hearing date has as yet been allocated. He also pointed out that the cross-defendant may serve its own medical evidence as it is not regulated by the WIM provisions and this "further supports the lack of prejudice to the plaintiff." 21On behalf of the plaintiff, Mr McKenzie, in effect, argued that the defendant had not discharged its onus in establishing either that the relevant evidence was not reasonably available to the defendant at the time that its pre-filing defence was filed or that the failure to grant leave would substantially prejudice its case. As to the first matter, Mr McKenzie pointed to the complete lack of any evidence presented by the defendant as to why neither it nor its insurer sought such evidence. Further, he argued that the purpose of the provision is to deal with situations where something unusual occurs such as where a claimant's condition deteriorates or they suffer a further injury, thereby necessitating the obtaining of further evidence by the parties and it should not be extended to cases where employers or their insurers sit on their hands and do nothing because the claim may ultimately not be instituted. 22As to the establishment of substantial prejudice, Mr McKenzie argued that that part of the subsection should be read so as to exclude from the definition of prejudice any consequence of the employer's or its insurer's own acts in failing to properly prosecute the matter.

Consideration 23I have already referred to the scheme of the Act which is to, inter alia, encourage the quick resolution of claims by requiring parties to disclose their respective cases at an early time. In the present matter, it would seem that the defendant employer and its insurer either ignored the relevant s282 particulars served upon each or made a forensic decision to do nothing relevant to the present motion until a pre-filing statement was received. Neither response should be encouraged by a Court granting leave under s318(2). The fact that, apparently, a practice has come into existence where both parties, as a matter of course, do not obtain relevance evidence early but merely refer to their intention to obtain it at some future time in their respective pre-filing documents does not make such a practice excusable. In fact, it defeats the purpose of the legislative scheme. 24Further, in this matter no evidence has been presented by the defendant as to why nothing relevant was done in the lengthy time available either before the plaintiff's pre-filing statement was served or in the 42 days allowed to it after such service. This occurred in circumstances where the relevant s282 particulars detailed a large economic loss claim intended to be brought by a worker whom had apparently undergone serious back surgery as a result of an accident at work which he claimed rendered him unfit until retirement. 25Neither party could refer me to any authority as to the meaning of the phrase "not reasonably available". Cases handed up in argument such as Australian Winch Haulage Company Pty Ltd v Collins [2013] NSWCA 321 and Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 deal with the other issues. 26It is clear that the phrase in the context of the legislation that it is used poses a question of fact and degree for the Court to determine, in my view, upon a consideration of all the circumstances. Pursuant to s33 of the Interpretation Act, 1987, I am also required to take a purposive approach when interpreting this phrase. I have already referred to the objects of the legislation. 27Taking all relevant matters into account, I find that the defendant has not discharged its onus of establishing that the relevant material was not "reasonably available" to it at the relevant time. Indeed, on the evidence I find that it was reasonably available to the defendant and/or its insurer. 28As to the issue of whether or not the defendant has established that the failure to grant the leave sought "would substantially prejudice" its case, this provision does not on its face require a Court to balance competing levels of prejudice or lack of prejudice between the parties. Whilst Mr Perla argued that substantial prejudice would clearly be occasioned in the present matter because the defendant would otherwise have no medical evidence, as mentioned, the cross-defendant is not bound by the WIM legislation. Whatever the position in relation to liability between the defendant and the cross-defendant, their interests as to quantum would effectively be the same. The cross-defendant has the power to arrange its own medical examinations which the plaintiff would be compelled to attend pursuant to the UCPR and it would be very surprising if it did not arrange similar examinations to those sought to be arranged by the defendant. Indeed, I pointed this out during argument, suggesting that the current motion seemed in those circumstances to be rather pointless but was informed that it was to proceed, apparently because it represented some form of test case between the plaintiff's and the defendant's solicitors who have a number of these matters. 29In circumstances where the cross-defendant can and will most likely have available to it similar evidence which is the subject of this motion, I am not satisfied that the defendant's case would be substantially prejudiced by the failure to grant the leave sought. 30Further, whilst s318(2) makes it plain that the Court is not to grant leave unless it is satisfied as to the two matters set out in subsections (a) and (b), that is not the end of the matter. The section does not say that the court "must" great leave if those two matters are established. Clearly, in addition to those matters, general discretionary considerations are relevant. In this respect, I note that the defendant's solicitors waited approximately 3.5 months after being advised that the plaintiff would not attend the relevant examinations before it filed the current motion. Again, there is no evidence presented as to why this occurred nor was I even informed of any reason from the bar table. If the matters contained within section 318(2) had been established, I would not have refused to grant the relief sought because of this unexplained delay, however, in the circumstance of this matter, it is a further reason why I decline to do so. 31. Accordingly the defendant's motion is dismissed 32. I will now hear the parties as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2013

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