Saville v Insurance and Care NSW

Factual Allegations and Procedural Background

1. The plaintiff was employed as a practice nurse at Biripi Aboriginal Medical Corporation at Taree from 2011 until 2016. The plaintiff was purportedly dismissed in June 2015. The dismissal was held to be unfair and the plaintiff was reinstated following proceedings in the Fair Work Commission in 2015. Nevertheless, the plaintiff had submitted a WorkCover claim with, it is alleged, GIO. The claim was rejected and then, later, accepted.
2. The plaintiff alleges that she was the subject of sexual assault in the workplace in 2015, which it is said she reported to Police in January 2016. The plaintiff ceased employment in March 2016.
3. The plaintiff submitted a claim with GIO for workers compensation in or about February 2016. The claim was denied by GIO on, it seems, four occasions between 2016 and 2018.
4. The plaintiff submitted a complaint to icare regarding GIO's investigation and management of the claim. The plaintiff alleges that this complaint occurred in 2016.
5. The first defendant, icare, indicates that a dispute was raised on 28 December 2017, with no records indicating an earlier complaint.1
6. The plaintiff contacted SIRA by telephone, it is alleged, eight times between September 2015 and April 2021, regarding the compensation claim and its handling. There were proceedings in the Personal Injury Commission as a result of which GIO provided compensation to the plaintiff in March 2021.
7. As earlier stated, the plaintiff filed the Statement of Claim on 23 June 2021. The plaintiff claims approximately $1 million in damages for psychological injury and economic loss. The plaintiff claims that her psychological injury and economic loss was caused by the negligence of the defendants and/or by breach of statutory duty in relation to the investigation and management of her insurance claim. Against icare, the plaintiff particularises her claim for negligence on the basis that: icare was negligent in its investigation of the plaintiff's claim; [1] and, it breached its statutory duty to monitor the performance of GIO. [2]
8. Against SIRA, the plaintiff particularises her claim in negligence on the basis that: SIRA was negligent in its failure to supervise the management of the plaintiff's claim to GIO, including its failure to respond in a timely fashion to the plaintiff's complaint to icare; [3] and, it breached its statutory duty to supervise the handling of the plaintiff's claim to GIO, [4] and, failed to ensure GIO complied with the standards set out in the Workers Compensation Act 1987 (NSW) (hereinafter "the 1987 Act").
9. In her claim against GIO, the plaintiff alleges that: GIO was negligent in its investigation of the plaintiff's claim; and, it breached its statutory duty by failing to comply with the standards as set by SIRA. [5]
10. On 11 August 2021, the Registrar made orders that the plaintiff, by 31 August 2021, file and serve a Notice of Motion seeking a referral to a pro bono solicitor or barrister. The plaintiff did not file any Notice of Motion as a result of that order.
11. On 30 August 2021, the Registrar made orders that the plaintiff, by 14 September 2021, file and serve a Notice of Motion seeking the referral. The plaintiff did not file any Notice of Motion as a consequence of that additional order.
12. On 7 September 2021, the plaintiff was informed by the Law Society of New South Wales that her matter was ineligible for pro bono assistance from it.

First and second defendant

1. The first and second defendants rely on the Affidavit of Mr Anthony McCarthy, affirmed and filed on 2 November 2021 and the exhibits thereto (Exhibit AM-1). The defendants submit that, taken at its highest, the Statement of Claim does not disclose a reasonable cause of action against icare or SIRA. Further, the Statement of Claim tends to cause prejudice, embarrassment and delay.
2. The first and second defendants submit that the alleged duty of care and the claim for breach of statutory duty are unarguable at law. In particular, the first and second defendants submit, with respect to the claim in negligence, that:

• Neither icare nor SIRA owed the plaintiff a duty of care and such a duty does not exist at law;
• Neither icare nor SIRA had any direct involvement in considering the plaintiff's claim for workers' compensation;
• The determination of whether a public authority owes a duty of care depends upon a comprehensive consideration of the terms, scope and purpose of the relevant statutory regime; [6]
• The functions required to be exercised by a public authority are limited by financial and other resources reasonably available to the authority, having regard to the broad range of its activities. The defendants submit that to find such a duty exists would find the authority owes such a duty to every potential claimant for which it is not resourced; [7]
• The plaintiff's claim does not rise to the threshold set by s 43A of the Civil Liability Act 2001 (NSW);
• The plaintiff's claim for pure mental harm is governed by Pt 3 of the Civil Liability Act and the claim does not satisfy the requirements of s 32 of the Civil Liability Act.

1. The defendants also complained that it is unclear, from the Statement of Claim, whether the allegation of breaches of statutory duty are pressed as a separate cause of action or particulars of the negligence that have been alleged.
2. To any extent that the alleged breaches of statutory duty are separate claims, the defendants submit that the claim, or any of the supporting evidence, does not satisfy any of the basic elements required to establish the tort of breach of statutory duty. The defendants relied upon material relating to the statutory functions of icare and of SIRA.
3. The first and second defendants also submit that, even if the Court were to find that the alleged duty existed, there is no causal connection pleaded. On this submission, the plaintiff has not demonstrated how the conduct of icare or of SIRA which caused, substantially or otherwise, the harm suffered by the plaintiff as a result of either the workplace injury, or GIO's failure to deal adequately and appropriately, or with due care, with the insurance claim in relation thereto.

Third defendant's evidence and submissions

1. The third defendant, GIO, relies on the Affidavits of Ms Joan Felicina Williams, affirmed 28 February 2022 (which replaced an Affidavit of 21 December 2021 but annexed the same annexures [8] ), and an Affidavit affirmed 2 November 2021 [9] and the annexures thereto.
2. The gist of the submissions of GIO is in or to the same effect as those of the first and second defendants. The third defendant, firstly, relies upon objections to evidence relating to hearsay, and, secondly, submits that the Statement of Claim discloses no reasonable cause of action.
3. GIO asserts that the Statement of Claim does not allege the existence of a duty of care owed to the plaintiff by GIO. In the alternative, to the extent that the Statement of Claim alleges a duty of care, it does not allege or specify the nature and scope of that duty, or how it is said to arise.
4. GIO's submissions refer to the circumstance that there is no legal authority that supports the proposition that a workers compensation insurer in the position of the third defendant owes a duty of care to a person employed by one of the insured employers.
5. Further, the submissions rely upon authority to the effect that, in the context of the workers compensation insurance scheme, there is no tortious or contractual duty imposed upon a workers compensation insurer to act in good faith. [10]
6. Further again, the submission draws the Court's attention to the circumstance that the Statement of Claim does not disclose a causal relationship between the alleged breach of the alleged duty and the injury or loss suffered. The submission seeks to have the Court determine that the lack of a duty of care and the lack of a causal relationship results in the claim against GIO being unable to succeed, as a matter of law.
7. As to the allegation of breach of statutory duty, GIO submits that the 1987 Act does not impose a duty on GIO and, in particular, does not create a statutory duty to comply with the terms of the Claims Manual. The plaintiff's claim, insofar as it is based on a breach of statutory duty, cannot succeed, on the submission of GIO.
8. GIO submits that the claim is an abuse of process and frivolous and the Court should exercise its power to dismiss the proceedings against GIO under the principles articulated in General Steel [11] .

Submissions of the Plaintiff

1. The plaintiff is self-represented. The plaintiff relies upon her own Affidavit of 28 November 2021 and the annexures thereto, as well as her written submissions filed 22 January 2022. In her submissions, the plaintiff refers to various difficulties she has encountered in these proceedings owing to her lack of representation.
2. In the first instance, the plaintiff denies that the Statement of Claim is "embarrassing". To a large extent, the plaintiff's submissions re-state the allegations in the Statement of Claim, and the procedural background related to these proceedings and other matters. The submissions do not seek to establish how the current Statement of Claim discloses a cause of action or particularises the damage and its cause.
3. Some allowance should be made for the circumstance that the plaintiff is unrepresented, and persons who are otherwise unable to obtain legal representation ought not to be denied access to the courts. There is, however, a limit to the degree to which irregularities can be tolerated. The allowance made to the plaintiff on the basis that she is self-represented cannot be permitted to cause an unfairness to the defendants in the manner in which the trial is conducted and the notice they have of the case they are required to meet.
4. The plaintiff states that the proceedings relate directly to her claim for workers compensation in respect of a psychological injury caused by "a sexual assault upon me by my employer" and to bullying and harassment that occurred in her workplace in 2015. [12] The plaintiff asserts that she was unable to continue to work as a result of the psychological injury "caused by the sexual assault and the ongoing bullying and harassment". [13]
5. The plaintiff refers to resolved workers compensation incidents said to have occurred prior to 2015. In respect of the 2015 allegations, which are those related to these proceedings, the plaintiff submits that the Personal Injury Commission ordered that the plaintiff be back-paid weekly benefits (from 2016 to March 2021).
6. Despite this, the plaintiff submits that the first defendant continually denied her claim for worker's compensation over a number of years, and "failed to properly investigate the matter", engaged in "victim blaming" and "displayed an attitude clearly biased in favour of the perpetrator of the sexual assault". It appears that the plaintiff sues the first defendant only for negligence.
7. The plaintiff agrees with the defendants' summary of the statutory functions of icare and SIRA.
8. In respect of the second and third defendants, the plaintiff states that she does not sue for negligence. The plaintiff submits that the second and third defendants did breach their statutory duty to the plaintiff by failing to take action regarding her complaints to each defendant. The plaintiff submits that she filed complaints over several years to each defendant regarding the first defendant's management of the plaintiff's worker's compensation claim. The plaintiff's submissions largely address the role of SIRA, and do not provide any particulars regarding the claim against the third defendant.
9. With great respect to the plaintiff, the plaintiff's submissions do not deal with the basis upon which liability arises, either in negligence or for breach of statutory duty. Nor do the written submissions seek to show, from the terms of the existing Statement of Claim, an allegation as to the manner in which the elements of either tort have been satisfied.
10. Further, the plaintiff has not sought to overcome the strict requirement, imposed by s 43 of the Civil Liability Act, to demonstrate breach of statutory duty by the second or third defendants.
11. Over and above the foregoing, the plaintiff's claim does not deal with a difference between distress and psychiatric injury. Nor does the plaintiff distinguish between the injury caused by the conduct of her employer and the injury, if any, caused by the failure of any one of the defendants to deal with the insurance claim, or the supervision of the insurer in a manner that ensured compensation was granted to the plaintiff for the injuries suffered as a result of the conduct of her employer.

Consideration and Conclusion

1. As can be seen from the foregoing, the current Statement of Claim filed by the plaintiff does not enable any of the defendants to meet whatever case may be put, or is sought to be put, by the plaintiff. On the basis of the current Statement of Claim, the Court could not understand either the cause of action, or the causal connection between the alleged conduct of the defendants and the psychological damage suffered by the plaintiff.
2. It is important to note that the description "embarrassing", when applied to pleadings, has a different meaning from its use in ordinary speech. The term generally refers to a pleading that is unintelligible, ambiguous or so imprecise in identifying factual allegations that it deprives the opposing party of proper notice of the real substance of the claim or defence. In that sense, the pleading in the Statement of Claim is "embarrassing".
3. On the basis of the statements of fact in the plaintiff's written submissions, it may be that the plaintiff has admitted that the injuries suffered by her are a result of the conduct of her employer, rather than the conduct of any of the defendants in these proceedings.
4. Given that the plaintiff is unrepresented, I consider that it is inappropriate to treat what may be considered admissions in the written submissions as binding or giving rise to factual assertions inconsistent with the nature and kind of claim made against any one of the defendants.
5. Nevertheless, the Statement of Claim, in its current form, cannot be allowed to stand, and the proceedings cannot be allowed to continue on the basis of the Statement of Claim. I intend to allow the plaintiff to amend, or seek to amend, the Statement of Claim by the filing of an Amended Statement of Claim.
6. The difficulty is that I am not confident - particularly given the allegations in the plaintiff's written submissions, that the injuries were caused by the conduct of the plaintiff's employer - that a cause of action exists. I cannot be confident that damage has been caused by the conduct of any of the defendants, whether or not negligent in breach of a statutory duty, or whether there be a duty of care to the plaintiff. Further, I question whether the plaintiff has standing to enforce any duty imposed by the legislative scheme binding upon any one or all of the defendants.
7. Despite the suspicion that an allegation that would amount to a cause of action against any one of these defendants would be inconsistent with authority, I am nevertheless minded to allow an amendment to be filed, and leave the defendants to whatever remedy may be sought in relation to that amendment.
8. On the material before the Court, I am satisfied that, to plead and process a claim of this kind properly against these defendants would involve proceedings that would test the outer limits of the law of negligence and breach of statutory duty. I am also satisfied that the litigant does not have the means to afford legal representation, the capacity to obtain legal assistance herself, or the capacity to plead and conduct the proceedings in a manner that will provide the defendants with an understanding of the case they meet.
9. In those circumstances, notwithstanding the absence of a Motion as ordered by the Registrar, the Court will refer the plaintiff to the Registrar for the provision of appropriate legal assistance.
10. The Court makes the following orders: 1. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Court strikes out the Statement of Claim in these proceedings; 2. The plaintiff has liberty to file an Amended Statement of Claim by 4:00 PM on 10 October 2022; 3. Pursuant to r 7.36 of the Uniform Civil Procedure Rules, the Court refers the plaintiff to the Registrar for referral to a barrister or solicitor on the Pro-Bono Panel for legal assistance of the following kind: 1. Advice in relation to the proceeding; 2. Representation at directions hearings, interlocutory and final hearings; 3. Drafting and settling of documents to be filed or used in the proceeding; and 4. Representation generally in the conduct of the proceedings; 1. The plaintiff shall pay the costs of each of the defendants incurred as a result of the Motions.

Endnotes

1. Affidavit of Mr Anthony McCarthy, affirmed 2 November 2021, at [20].
2. Statement of Claim, particulars, pp 5-7.
3. State Insurance Governance Act 2015 (NSW), s 10.
4. Statement of Claim, particulars, pp 7-8.
5. Statement of Claim, particulars, pp 8-9; State Insurance Governance Act 2015 (NSW), s 24.
6. Workers Compensation Act 1987 (NSW) ("the 1987 Act"), s 192A.
7. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [146]-[147]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59.
8. Civil Liability Act 2001 (NSW), s 42.
9. Affidavit of Ms Joan Felicina Williams, affirmed 28 February 2022; Court Book, p 563.
10. Affidavit of Ms Joan Felicina Williams, affirmed 2 November 2022; Court Book, p 343.
11. CGU Workers Compensation (NSW) Ltd v Garcia [2007] NSWCA 193; Employer's Mutual Indemnity (Workers Compensation) Ltd v A Donald Pty Ltd [1997] NSWCA 102.
12. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.
13. Written Submissions of Glenda Saville, filed 21 January 2022, section D, [8(i)]. 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: 24 August 2022