The plaintiff was working at the second defendant's premises as an employee of the second defendant at the time of the incident. At some point prior to the day of the accident, the second defendant purchased the PPS machine from the first defendant. The second defendant also retained the first defendant to install and assemble the PPS machine and to provide training and instructions to its employees on the use of the machine.
On the day prior to the accident, a test run was performed. Following the test run, the PPS was cleaned using a process called "cleaning-in-place". During this process, water was pumped through the PPS. The following day, the operators began implementing the process of transferring oil into the PPS and bringing it to temperature for the production run. This start-up procedure was supposed to include one hour of de-watering the PPS.
According to Mr Murphy, unbeknownst to the operators, approximately one litre of water was trapped in the weir system.
It seems that the second defendant's staff members might have believed that the pappadums were not cooking properly and considered that this was due to insufficient flow over the weir. To rectify this issue, the plaintiff closed (or partly closed) the weir bypass valve. This caused hot oil to flow through the weir system. Unfortunately, due to the presence of the water trapped in the weir system, an explosion occurred with the resulting injury to the plaintiff.
My brief description of the mechanism of injury is only intended to be that. It does not fully set out the complexities of what occurred at the time. Plainly, the central issue in the case is why and how all of this happened.
On 27 May 2018, the second defendant obtained a report from an expert, Mr Ian Bass, who opined on the cause of the explosion.
At some point after the accident, the solicitors for the plaintiff were retained and sought to obtain their own expert opinion. On 23 December 2020, they obtained an initial report of Mr Murphy. Mr Murphy described this report as "preliminary". He observed that the PPS had been modified since the date of the incident and listed additional information which he required in order to form a conclusive view and provide his final report.
The plaintiff did not serve that preliminary report on the defendants. It was not included with the pre-filing material.
Instead, having commenced proceedings against the first defendant only on 24 December 2020, the solicitors for the plaintiff obtained further information and documents, including those documents sought by Mr Murphy. There followed a series of correspondence with Mr Murphy, culminating in a final letter of instructions dated 26 May 2022.
Mr Murphy's October report is based on that final letter of instructions.
In the meantime, the plaintiff amended the statement of claim joining the second defendant to the proceedings. As Mr Semmler points out, prior to this time, the proceedings had been commenced against the first defendant, the second defendant had been joined as a cross-defendant and the proceedings were being case managed by the Registrar.
Even before the filing of the pre-filing statement, the plaintiff was outside of the three-year limitation period for commencing proceedings. Although it had been nearly four years since the accident, the filing of a pre-filing statement has the effect of suspending the expiration of time for any limitation period.
[2]
Should leave be granted to rely on the expert report?
The plaintiff's primary submission is that the Court should be satisfied of both matters in s 318(2) of the WIM Act.
The plaintiff submits that "the material concerned" within the meaning of s 318(2)(a) was not reasonably available to the plaintiff when the pre-filling statement was filed and that the failure to grant leave would substantially prejudice the plaintiff's case.
The plaintiff has only one expert report upon which she seeks to rely, being the October report. Mr Murphy's first report was only preliminary and has not been served.
The second defendant submits that the plaintiff is not entitled to rely on the major aspects of that report, leaving the plaintiff with very little expert evidence. As Mr Newton correctly submits, the plaintiff chose not to serve the preliminary report or the report of Mr Bass with the pre-filing statement, even though it was available to the plaintiff at the time.
It must be that if leave is not granted, the plaintiff will be substantially prejudiced within the meaning of s 318(2)(b) of the WIM Act.
The question is thus whether section 318(2)(a) of the WIM Act is satisfied: that is, the material concerned was not reasonably available to the plaintiff when the pre-filing statement was served.
The plaintiff's approach to this question is to firstly submit that the report was not available when the pre-filling statement was served. It is dated well after the pre-filling statement.
Secondly, the plaintiff submits that the words "the material concerned" in s 318(2)(a) should be construed as referring to that which the plaintiff seeks to rely on. As such, the plaintiff says that the material concerned is the report and it was not reasonably available at the time of the pre-filing statement.
The defendant disputes that construction of s 318(2)(a). It relies upon a decision of Judge Abadee of the District Court in Skinner v The State of New South Wales [2021] NSWDC 36 ("Skinner"). His Honour considered the same issue in his Honour's earlier judgment of Petreski v Ors Group Pty Ltd [2019] NSWDC 417. In both cases, his Honour undertook a thorough analysis of the relevant legislation. However, as his Honour says in Skinner at [30], in that case he was considering the issue in the context of a party seeking to tender a supplementary expert report based upon information not previously considered. His Honour observed at [30]-[31]:
"[30] …for the purpose of s 318(2), at least in the context where a party wishes to tender a supplementary expert report based upon information not previously considered, in my view, particular attention needs to be given, in the first instance, to what purpose is sought to be achieved by it.
[31] The second step, in my view, is to determine, in the context of supplementary expert reports, for the purposes of s 318(2)(a), whether there are circumstances - necessarily occurring after the service of the pre-filing statement (or defence) - which justify the supplementary opinion being provided."
The key point arising from his Honour's judgment (upon which the second defendant relies) is that it is necessary to look at whether the documents forming the basis of the supplementary report were reasonably available to the parties at the time of the pre-filing statement, rather than looking at when the report came into existence.
This leads into the second defendant's primary submission: that it is necessary to look at the substance, rather than the form, of the proposed evidence. Mr Newton submits that s 318 should not be interpreted such that it is only necessary for a party (such as the plaintiff) to say that a report was only obtained after the pre-filing statement in order to establish that it was not reasonably available at the time.
I accept that submission. Otherwise, the outcome would depend on when the solicitors representing the plaintiff decided to obtain an expert report and when they might serve it. That cannot be the correct construction.
In these circumstances, as Mr Newton submits, it is always necessary to look at the substance of the evidence leading to the preparation of a report, rather than merely the form of the evidence (being a report with a certain date).
To support its submission that the substance of the evidence was available prior to the pre-filing statement, the second defendant undertook an extensive analysis of the October report. Mr Newton highlights that many of the paragraphs appearing in the second report appear to also be contained in the preliminary report. On my reading of the report, that is so.
Mr Newton also submits (and I accept this) that some of the conclusions drawn by Mr Murphy in the October report must have been based on information that was reasonably available to the plaintiff at the time of the pre-filing statement. This would include the plaintiff's own statement and some documents which had been obtained under subpoena. At the very least, this material would have been available for inspection by those representing the plaintiff prior to the pre-filing statement.
However, it is apparent that some portions of the report are based on evidentiary statements served well after the filing of the pre-filing statement. Mr Murphy has confirmed as such.
Mr Newton responds that, although Mr Murphy might have referred to the defendant's evidentiary statements of Mr Morgan and Mr Mahoney, in reality, the same opinions could have been based on other material, such as the plaintiff's evidentiary statement.
I accept Mr Newton's submission in that regard. If I was to undertake a reconstruction of the October report and consider whether Mr Murphy's opinions could be substantiated by material that may have been available prior to the prefiling statement, I might find it possible that those opinions were drawn from earlier material.
However, on my analysis, Mr Murphy also draws extensively on the second defendant's lay statements served in these proceedings.
In my view, it is not the task of the Court to determine whether the relevant material was not reasonably available by undertaking a reconstruction of the October report. Mr Murphy states that he had regard to the defendant's lay statements as the basis of his opinion.
Section 318 should not be construed in such a way that I must dissect the report in order to determine whether the expert could have based his opinions only on documents other than those on which he says he relied.
The question I am asked to consider is fact-specific. I must consider all of the facts and circumstances and determine whether the material concerned was not reasonably available to the plaintiff when the pre-filing statement was served.
In determining whether the material concerned was not reasonably available, it is necessary to consider both whether the material forming the basis of the report, and the report itself, were available.
Of course, it is standard practice in a claim for negligence (including a work injury claim) for the party seeking to prove negligence to rely on an expert report. Often, expert reports cannot be obtained until after all of the lay evidence has been served. There is nothing unusual about that. In fact, in most cases, expert reports cannot be obtained until the parties have served all of their lay evidence. That is why civil cases are being case managed at this time, to ensure that lay evidence is served at an early stage, allowing the parties to obtain their respective expert evidence.
As such, on the proper construction of subss 318(1) and (2), it is not sufficient to merely look at the date of the report. It is necessary to consider all of the circumstances leading up to the preparation of the report and, specifically, when the material relied upon by the expert was reasonably available.
The phrase "reasonably available" must be given meaning. It does not merely mean "available". "Reasonably available" must be read in the context of the purposes of the WIM Act and, in particular, s 318. The party seeking to rely on the report must have taken reasonable steps to obtain it at the relevant time. The test is not simply whether the report could have been obtained. The test is whether there were reasonable steps which could have been taken, having regard to the material available in order to obtain the report.
In this matter, those representing the plaintiff obtained a preliminary expert report prior to the pre-filing statement. In his preliminary report, Mr Murphy said that he required further information prior to providing a final report.
The plaintiff refers to seven documents which she says were not available when the pre-filing statement was filed. The defendant seeks to demonstrate that, in fact, those documents (or at least some of them) were available at the time.
I doubt that the legislation should be interpreted in such a way that the Court and the parties must undertake an exhaustive process to consider which documents referred to in an expert report were available and which documents were not. The purpose of s 318 is to ensure that the 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.
There will be some cases in which the issues are complex and it is not possible to finalise an expert report prior to the pre-filing statement, despite the availability of many documents. It seems to me that this is one of those cases. The plaintiff's attempts to obtain an expert report were unsuccessful because the expert said he was unable to prepare a final report based on the material available at the time.
In the period leading up to the final letter of instructions to Mr Murphy dated 26 May 2022, the solicitor for the plaintiff exchanged correspondence with Mr Murphy seeking his final report. The October report was obtained after (what appears to be) all of the lay evidence in these proceedings was served.
In my view, it would make no sense to strike out any of Mr Murphy's opinions which were based upon material available to the plaintiff prior to the pre-filing statement, leaving only those opinions which were based on the new material. If that was the position, there would be cases in which large portions of expert reports could not be relied upon by the plaintiffs.
In this case, the defendant served evidentiary statements which were not available to the plaintiff at the time of the pre-filing statement. Mr Murphy says that those evidentiary statements were relied upon in forming a number of his opinions. It is true that he may not have relied upon those evidentiary statements in respect of some of his opinions. He might have reached some conclusions on the plaintiff's statement alone. However, considering the report on the whole, I accept that not all of the material upon by Mr Murphy was reasonably available to the plaintiff at the time of the pre-filing statement and, thus, the substance of the material on which the report is based was not available.
As such, important evidence was not available to the plaintiff at the time of the pre-filing statement; this includes evidentiary statements relied upon by the second defendant in these proceedings. Plainly, Mr Murphy relied upon those statements.
In the circumstances, I am satisfied that the material concerned was not reasonably available to the plaintiff at the time of the pre-filing statement. Further, I am satisfied that the failure to grant leave would substantially prejudice the plaintiff's case.
As such, I consider that leave should be granted. As the two limitations set out in s 318(2) of the WIM Act have been overcome, the ordinary principles which apply to the granting of leave apply. I grant leave to the plaintiff to rely on the report of Mr Murphy dated 5 October 2022.
As far as the remainder of the application is concerned, Mr Newton makes a valid point that, in this case, the expansion of the plaintiff's particulars of negligence is substantial. However, it seems to be common ground between the parties that the additional particulars reflect the content of the October report.
The entitlement to leave in accordance with s 318(2) of the WIM Act has been established and there is no other reason why I would not grant leave to the plaintiff to file the amended statement of claim, so that the matter can now progress in the usual way.
In those circumstances, I make orders in accordance with the amended notice of motion dated 30 November 2022, that:
1. pursuant to s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), leave is granted to the plaintiff to rely on the report of Mr Luke Murphy dated 5 October 2022;
2. pursuant to r 64 of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the plaintiff to file the further amended statement of claim;
3. the second defendant is to pay the plaintiff's costs of the motion;
4. I direct the parties to participate in a mediation prior to 20 October 2023;
5. I list this matter for case management before me on 27 October 2023;
6. the plaintiff is to file and serve the amended statement of claim by 18 August 2023; and
7. the defendant is to file and serve a defence by 8 September 2023.
[3]
Amendments
12 October 2023 - Amendment to representation on cover sheet and at para [10].
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Decision last updated: 12 October 2023
The issue which arises on this application is the construction of s 318 of the WIM Act and its application to the particular facts and circumstances of this case.
Section 318 is in the following terms:
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.
I have previously considered the proper construction of s 318 of the WIM Act in Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 ("Sohailee"). Whilst I need not repeat everything that I said in that decision, I reiterate my observations made at [22]-[24]:
"[22] The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars of his claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. The purpose of requiring the claimant to do that must be 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. The obligation to provide that notice is complimented or enforced by s 318 of the Act.
[23] The expression "materially different" must be given its ordinary, natural meaning. It must be interpreted in the context in which those words appear having regard to the overall purpose of s 318(1)(a) of the Workplace Injury Act. It is not necessary or appropriate to substitute other words to give meaning to the expression. It is also important to emphasise that not just any difference will give rise to the application of s 318. The difference must be material. Whether there is a material difference between the two documents must depend on the facts in each case.
[24] There can be little doubt that a pleading of a different mechanism of injury or an accident occurring in substantially different circumstances would be a materially different pleading. A pleading of a different cause of action would be a materially different statement of claim. Further, raising a completely new allegation as to the conduct of the proposed defendant would be a materially different pleading. By that I mean that if the plaintiff asserted that the defendant did or failed to do something not raised at all, either generally or specifically, in the proposed statement of claim then that would be something which is materially different."
As set out in s 318(1)(a) of the WIM Act, the plaintiff is not entitled to file a statement of claim that is materially different from the draft statement of claim which formed part of the pre-filling statement, except with leave of the Court. Thus, the threshold question which arises is whether the proposed statement of claim upon which the plaintiff now seeks to rely is materially different to the draft statement of claim, which was served on the defendant at the time of pre-filing.
If it is materially different, it will be necessary for the plaintiff to obtain the Court's leave to amend the statement of claim in accordance with s 318(2) of the WIM Act. If it is not materially different, then the plaintiff may seek leave as part of the ordinary processes of this Court, without reference to s 318(2).
Ordinarily, the first issue would be whether the proposed amended statement of claim is materially different to the original statement of claim. The second issue would be whether the plaintiff is entitled to rely on the October report of Mr Murphy. That gives rise to a consideration of ss 318(1)(d) and 318(2).
The October report was not served prior to commencement of these proceedings. Nor was it disclosed to the second defendant at the time of the pre-filling statement. As such, it is accepted that the plaintiff requires leave of the Court in order to rely on that report.
The question of whether leave should be granted does not give rise to an unfettered discretion on the part of the Court. As set out in s 318(2) of the WIM Act, the Court may not grant leave unless it is satisfied of both matters set out in subss 318(a) and (b). Those subsections are conjunctive.
The principal issue on the application is whether leave should be granted to rely on the October report, having regard to s 318(2). Indeed, the plaintiff approaches the application on the basis that, if I am satisfied that leave should be granted to rely on the report, then it naturally follows that I would, if necessary, grant leave to file the amended statement of claim.
Further, the plaintiff submits that the proposed amended statement of claim is not materially different from the document served with the pre-filing statement. The second defendant disputes this, asserting that the particulars are so extensive that the proposed statement of claim must be viewed as materially different to the draft statement of claim.
For the purposes of this judgment, I will follow the course suggested by the plaintiff. I will firstly consider whether leave should be granted to rely on the October report of Mr Murphy.