Petreski v The Ors Group Pty Ltd

Statutory provisions

1. Section 318(1)(a) of the Act revised that for the purposes of court proceedings on a claim for "work injury damages", 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.
2. "Work injury damages' is defined in section 250(1) of the Act relevantly to mean damages recoverable from a worker's employer in respect of an injury to the worker caused by the negligence or tort of the employer.
3. Section 250(2) of the Act relevantly further defines "Work Injury Damages" in a way that indicates that a reference to a workers employer includes a reference to: (a) a person who is vicariously liable for the acts of the employer, and (b) a person for whose acts the employer is vicariously liable.
4. Other provisions which may bear upon the construction of s 318(1) are ss 315 and 316 of the Act. Those provisions prescribe the content of a pre-filing statement. In the case of a claimant's pre-filing statement, the claimant must set out in such particulars of the claim the evidence that the claimant will rely on to establish or support the claim as the Rules may require. It is common ground that the relevant Rules required the claimant to serve a draft statement of claim.

Construction of s 318(1) of the Act

1. The critical concept underlying s 318(1) is that there be no 'material difference' between the proposed pleading that is part of the pre-filing statement and the statement of claim which is filed in the proceeding.
2. It may immediately be noted that: 1. The Act does not define what is meant by 'material' in this context; and 2. there is no stipulation as to the magnitude, or extent of difference there is between the pre-filing draft pleading and the statement of claim that is filed. That is, there is no indication as to how many material differences there must be.
3. Counsel for both parties on the application agreed that part of the context by which s 318(1) must be construed is the effective statutory precondition, that the injured worker and the employer undergo a process of conciliation or mediation before the claimant is entitled to commence his or her proceeding to recover damages. This practicably means that prior to the commencement of the proceeding, each party must put their cases before each other, so as to promote the prospects of a successful conciliation or mediation process and obviate the requirement for court proceedings.
4. Counsel for both parties agreed that although there are a range of authorities which had considered cases where the evidence that the plaintiff relied upon in a proceeding differs from that which had been served in, or with, the pre-filing statement, there is a dearth of authority to deal with the situation where there are differences simply between the way in which the plaintiff has articulated his or her claim in the pre - filing draft pleading and the statement of claim that is filed.
5. Both Counsel referred me to the decision of Davies J in Hall v Ecoline Pty Ltd t/as Treetop Adventure Park [2018] NSWSC 1732. In that case, Davies J upheld the employer's strike out application. This was because the cause of the claimant's injury that had been identified in the statement of claim (a fall) was materially different to the cause identified in the pre-filing draft pleading (a lifting of wooden planks). This new articulation of a cause of injury was contrary to the understanding of the insurer and a range of medical experts as revealed in the pre-filing statement served by the defendant.
6. Both Counsel appeared to agree that this was a clear case of a material difference. There was no lengthy analysis by the Judge in that case as to what his Honour regarded as generally material, for the purposes of s 318(1): it was, with respect, an impressionistic evaluation based upon the facts. In this application, Counsel disagree however in the case before me whether such differences as between the pre-filing draft pleading and the actual statement of claim were 'material'.
7. Whether something is 'material', in ordinary parlance, means something that is "important, essential or relevant" (Australian Concise Oxford Dictionary, 4th ed). However, the context in which the statutory provision appears is directed towards the content of a pleading.
8. In that context, I consider that some assistance may be obtained from the general rules as to the content of pleadings as contained in Part 14 of the Uniform Civil Procedure Rules and, to some extent, how they have been interpreted. Rule 14.7, for example, states that the pleader must state only a summary of the material facts on which the party relies and not be evidenced by which those facts are to be proved. Rule 14. 14(1) also stipulates that in a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.
9. These rules were considered by the Court of Appeal in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 (Hodgson JA, with whom Mason P and Handley JA agreed). At [20], Hodgson JA noted that although the rules do not expressly require the causes of action be stated in the pleadings (the express requirement being only to state the material facts), (1) the word "material" means those facts that are material to the claim, that is to the cause or causes of action that are relied upon; (2) that the requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract and (3), the general requirement to avoid surprise means that material facts must be stated on or in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action. His Honour then added, at [21] that where there is a danger of surprise, particularly where there is a lack of precision and clarity in the pleading, it may be appropriate to require a plaintiff to explicitly relate the fact it pleads to specified courses of action.

The material differences cited by the employer in this case

1. The employer cited numerous suggested material differences between the pre-filing statement draft pleading and the statement of claim that was filed. It is unnecessary to go into detail as to each of these paragraphs.
2. In my view, the application may be disposed of on the basis that there is at least one material difference in the version of the pre-filing statement pleading and the statement of claim. In the statement of claim, there was an alteration from the earlier version in that it is alleged that the employer is vicariously liable for the conduct of its servants and/or agents. That is not an allegation that was made in the pre-filing statement draft pleading. To the contrary, the pre-filing statement draft pleading, by its statement of the particulars of negligence plainly identifies a case of direct liability on the part of the employer for the plaintiff's injuries and disabilities; hence the reference to such matters as failing to provide a safe and secure work environment. By its present case, reflected in its statement of claim, the plaintiff now seeks to make a different and perhaps an alternative case to the case of direct liability, being that the employer is vicariously liable for the conduct of its employees acting within the course of their employment. Although it might be said that to allege that liability is direct, rather than vicarious, is not a statement of material fact, for the reasons identified by Hodgson JA in Kirby, it is nevertheless, necessary, for the avoidance of surprise, for a claimant to identify the source of liability, when linked to the facts giving rise to it. This is a matter recognised by the plaintiff herself when, in her statement of claim, she inserted a reference to vicarious liability.
3. Section 318(1) requires that in order for it to be relied upon in this proceeding, the case of vicarious liability should have been made (by itself, or even in the alternative to the direct liability case) in the pre-filing statement draft pleading.
4. Counsel for the plaintiff/respondent argues, in opposition to this view, that it is axiomatic that when a claimant brings a claim means that the claim against the employer specifically contemplates that it is made on the basis of vicarious liability. I disagree. The definition of 'work injury damages' in s 250(2) of the Act indicates that it is only an inclusive possibility that the claim against the employer may be one of vicarious liability. I agree with the submission of counsel for the defendant/applicant that s 250 does not seek to alter the nature or range of the potentially available causes of action against the employer. In my opinion there is a material difference between an action in direct liability and one of vicarious liability.
5. This disposes of the action. I would have thought that all of the other differences identified by the defendant were not 'material' differences. In my view, the insertions or amendments to the version of the pleading that made their way into the statement of claim, in comparison with the pre-filing statement draft pleading, were matters of evidence which were unnecessary to insert. Although, strictly speaking, they may have made the pleading deficient on that account, no application was brought to have parts of the pleading struck out for breach of the UCPR. Further, although to some extent it is conceivable that the inclusion of these evidentiary matters might have entailed some new inquiry or investigation, this was not the basis upon which the applicant brings the application. At least the point did not arise from my perusal of the affidavit in support of the application. Save for the insertion of an action for vicarious liability, it did not appear that there was any change to the "material" allegations necessary to sustain the claim alleged against the employer. I would not have struck out the pleading on that account.

ORDERS

1. Having heard from Counsel as to the consequences of my determination (involving consultation between the parties) I order: 1. That pursuant to s 318(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the statement of claim filed on 14 February 2019 is struck out. 2. Costs are reserved. 3. The Defendant is to supply, within 5 days, a Short Minutes Order with a short note (not exceeding three pages) on final orders to be made. 4. Absent of further indication, subsequent orders will be made on the papers.

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: 14 August 2019