Defendant's application to rely upon vocational reports of Mr Burchett
18The rationale behind the tender of documents is these proceedings being restricted is set out in the relevant provisions of Part 6 of Chapter 7 of the WIM Act. These sections place limitations upon the parties to set out particulars of the claim and the evidence of the claimant. Section 316 provides:
"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."
19Section 318 provides:
"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."
20The general scheme of Part 6 of Chapter 7 of the WIM Act is for the regulation of proposed pleadings and the supporting documents, which is why they are called "pre-filing statements" and "pre-filing defences". It is only after these steps have been completed and a mediation has taken place pursuant to s 318A that a statement of claim can actually be filed in court. The intention is that the parties give full disclosure of their position so that by mediation prospects of settlement can be fully explored.
21The question of the plaintiff's employability in the building industry would always have been a significant issue given the nature and severity of his injuries, and in particular after he suffered the series of epileptic seizures which resulted in the loss of his motor vehicle driver's licence. His evidence was that his employer would not allow him to use certain power tools at all, and that other power tools had to be used under supervision. He remained with his employer on light duties but the vocational capacity assessment report of Mr Martin, served with the plaintiff's pre-filing statement, stated in unequivocal terms that the plaintiff would not be able to continue his employment with the defendant and that his prospects of obtaining alternative employment in the open labour market were very poor. The report noted he was at that time working three days a week with his pre-injury employer but required supervision and further instruction to a considerable degree.
22The plaintiff resigned from his employment on 10 May 2013 and his last day of work was on 17 May 2013. He obtained part time employment with the St George and Sutherland Community College on 20 May 2013 as a disability worker assisting persons with disability.
23The defendant was aware of the plaintiff's resignation on 10 May 2013. The pre-filing defence filed on 30 May 2013 (MFI 1) lists a series of medical reports, an investigator's report in relation to the accident and a draft defence. No vocational report of any kind was served. The precise particulars of evidence and information the defendant propose to rely upon were:
(1)"Current medical evidence addressing the plaintiff's injury, disabilities and ability to work including from a functional and vocational assessment.
(2)Evidence addressing the plaintiff's allegations of entitlement of damages for economic loss, including the plaintiff's actual and probable earnings both before and after the injury consisting of records relating to his earnings in employment with the defendant, earnings of comparable employees in the employ of the defendant, records to be obtained from the plaintiff pursuant to subpoena including taxation returns, books of accounts, business records, financial and banking records and any records relating to same within the custody possession and power of any accountant or other service provider retained by the plaintiff for such purpose, including in relation to any business conducted by or on behalf of the plaintiff.
(3)Factual evidence relating to the plaintiff's allegations in the PFS, including statements or oral evidence from witnesses, documents yet to be obtained from the defendant, records from the defendant workers compensation insurer claims file, records from any medical provider to the plaintiff including such records to be obtained pursuant to subpoena.
(4)The defendant reserves the right to adduce and rely upon such further evidence as may be necessary arising out of any response to requests for particulars, documents produced under subpoena or other evidence obtained or provided by the plaintiff hereafter."
24Counsel for the defendant submits that the reference to "functional and vocational assessment" was an indication to the plaintiff that a vocational assessment would be relied upon by the defendant, and that this was to be inferred from this reference. Mr Halligan informed me from the bar table that the report of Mr Burchett which was the subject of this application was prepared in or about 27 August 2013 and served, and it appears to have played some part in, or available for, the subsequent mediation. The subsequent reports of 14 and 15 April 2014 are updates, to which the additional objection was taken that they were not served upon the plaintiff in time, although this complaint was not proceeded with.
25I do not accept this submission. The terms of paragraph (1), which is the principal basis upon which the defendant submits their reliance upon vocational material is a part of the pre-filing defence, clearly addresses only the medical evidence, in that the sentence reads "[c]urrent medical evidence addressing the plaintiff's injury, disabilities and ability to work including from a functional and vocational assessment" (emphasis added). The documents sought in paragraphs (2) and (3) consist of financial records only. As to paragraph (4), the plaintiff's vocational assessment was served together with the pre-filing statement and was not material of a "further evidence" nature, or a document which required production under subpoena.
26Some support for Mr Burchett's report still being able to be relied upon, notwithstanding its exclusion from the pre-filing defence, may be obtained from McKay v Palmers Removalists & Storage Pty Ltd [2010] NSWCA 83. Mr McKay brought proceedings for damages pursuant to s 151 Workers Compensation Act 1987 (NSW), having obtained a certificate of mediation outcome from the Workers Compensation Commission prior to commencing proceedings. Both parties in those proceedings had filed vocational material with their pre-filing statement and defence which did not refer to the plaintiff seeking or obtaining a special licence for interstate truck driving, for which the salary was higher. After his accident, the plaintiff obtained an MC licence, which was necessary for interstate truck driving, but as there was no reference in the vocational assessment prepared for the defendant of the plaintiff having obtained the necessary licence, or that he had planned to obtain a MC licence before the accident, or that he wished to be an interstate truck driver, this source of loss was not considered in the reports. The sole reference in the plaintiff's vocational report was a reference to the plaintiff having driven, and wishing to drive, heavy vehicles. The plaintiff was not cross-examined about his wish to become an interstate truck driver, as the issue arose in closing submissions, according to Mr Lidden SC (whose instructing solicitor appeared for Mr McKay)..
27The Court of Appeal held (at [22]-[29]) that there was sufficient reference to the plaintiff's wishes to drive interstate trucks for these to have been issues arising from the vocational assessments. In addition, the failure of the defendant to cross-examine the plaintiff on critical aspects of his claim meant that a challenge to this evidence on the basis of reconstruction was not made out (at [30]-[32]). The Court, although referring the matter back to the Compensation Court for mediation, did not refer to the provisions of ss 313 to 318 of the WIM Act.
28The question in McKay was whether there was sufficient reference to the claim in the vocational assessor's reports. Their Honours were satisfied that the reference to driving heavy vehicles and to the plaintiff having carried out interstate transport jobs was sufficient.
29Is the reference to "functional and vocational assessment" in paragraph (1) of the pre-filing defence, or any of the other descriptions in paragraphs (2) - (4), sufficient to include a reference to a vocational assessment report, which would accordingly be a document to be taken into account?
30The Court of Appeal in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 took a different view to that taken in McKay (to which no reference was made) and affirmed the decision of Robison DCJ that the defendant was not entitled to dispute liability pursuant to s 318(1)(c) of the WIM Act despite subsequent attempts to raise liability. Hoeben JA stated at [218]-[219]:
"[218] The statement of Mr Fearnside is to be found at Blue 130-138. In it Mr Fearnside analysed in considerable detail the system of work of mountain awareness officers at the resort and expressed an opinion as to the impracticality and disadvantages of the alternative systems of work proposed in Ms Armour's report. This was dealt with at paras 27, 28, 29, 34, 35, 38, 40, 42, 44, 45, 46, 47, 48 and 49 of the statement. The only reason the statement did not address a system which had a mountain awareness officer at the top of the slope and one at the bottom, but no-one in between, was because such an alternative system was not advanced on behalf of the appellant until the trial.
[219] His Honour's interpretation of s 318(1)(d) was correct. I do not read that section as requiring a verbatim transcript of the evidence which will be given at trial, but rather a disclosure of the nature and substance of the evidence to be given. The statement of Mr Fearnside satisfied that requirement. The statement did not specifically deal with the alternative system of work advanced by the appellant at trial because at the time the statement was served, that was not part of the appellant's case. In that respect, it could fairly be said that this evidence "was not reasonably available to the party when the pre-filing defence was served". It was common ground that the evidence was important, otherwise the objection would not have been taken."
31Hoeben JA went on to note that Robison DCJ had correctly applied s 318(1)(d) of the WIM Act in relation to this evidence.
32The first issue is whether the evidence was available, in that the vocational report was provided at the mediation, according to counsel for the defendant. However, subsequent availability is not sufficient; the question is whether it was part of the pre-filing defence, and I am satisfied that it was not.
33The next issue is whether the vocational assessment evidence was "not reasonably available" when the pre-filing defence was served (s 318(2)(a)). The only explanation provided for this is that when the plaintiff resigned on 10 May 2013 the defendant was taken by surprise and did not have time to prepare a vocational assessment report. This was put from the bar table without any supporting evidence.
34The "obligation of forensic diligence" (Australian Winch & Haulage Co Pty Ltd v Collins [2013] NSWCA 327 at [140]) was squarely raised by the plaintiff in these proceedings, which were adjourned to the following day to enable the defendant to lead evidence in order to establish that the material was not reasonably available. In Australian Winch & Haulage Co Pty Ltd v Collins, the plaintiffs succeeded in a claim for the cost of funds management as part of his damages notwithstanding this issue not having been raised, in the absence of evidence as to efforts to obtain medico-legal evidence, but principally because this argument was not put to the trial judge (at [139]). That is not the case here. The defendant could have answered the first limb of s 318 by calling evidence. No evidence is available and this requirement fails in limine.
35Taking all of the above into account, I accept Mr Lidden SC's submissions that the decision not to call this evidence was either a tactical decision or an oversight, and not triggered by any surprise as the plaintiff giving notice on 10 May 2013 and ceasing employment on 17 May 2013, almost two weeks before the pre-filing statement was in fact filed and served in these proceedings.
36The defendant also fails in relation to the second limb of s 318(2), namely whether failure to grant leave would substantially prejudice the party's case. Mr Halligan did not address this issue beyond stating that it was self-evident that the exclusion of this material will be forensically disadvantageous to his client.
37The medical evidence provided by the defendant is brief, inadequate and out of date. The most recent report served by the defendant is the report of Dr Mellick of 12 December 2012 in which Dr Mellick considered it was appropriate to defer final assessment of the plaintiff's language deficient until he could assess his dysphasia, which he recommended should occur six to nine months after the date of his report. No such report was prepared. Accordingly, the most recent evidence of the defendant is Dr Mellick's note of the findings of Dr Rawling, a doctor retained by the plaintiff, who reported the plaintiff making "significant gains" in relation to his speech function. A psychologist's report of 25 June 2012, concerning treatment early in 2012 which was described as "brief" and largely comprised of advice about improving his sleep, adds nothing to the medical evidence before me. Any vocational assessment report relied upon by the defendant would have to rely almost entirely on the plaintiff's medical evidence.
38Furthermore, all of the medical evidence in these proceedings points to the plaintiff suffering a very severe head injury which has been complicated by subsequent epileptic seizures of such severity that he is currently unable to drive. Medical evidence addressing the plaintiff's injury from a functional and vocational assessment would have to take those factors into account.
39Having regard to the way in which the parties addressed me as to computation of past and future economic loss, I cannot ascertain that the unavailability of Mr Burchett's report would "significantly prejudice" the party's case where the medical evidence is clear.
40Having noted my reasons for rejection of the report of Mr Burchett, I now consider the parties' submissions in relation to past and future economic loss.