Hall v Ecoline Pty Ltd T/As Treetop Adventure Park

1. [1]

   The plaintiff was injured in an accident on 6 November 2009. At the time he was an employee of Mars Australia Pty Limited, the second defendant, and was participating in a team-building exercise operated by Ecoline Pty Ltd t/as Treetop Adventure Park, the first defendant.

2. [2]

   The issue arising in the proceedings and on the present application concerns precisely how the accident happened that resulted in the plaintiff injuring his back. What does not appear to be in dispute is that the plaintiff was above the ground and was moving from tree to tree. The exercise involved a plank or planks of wood, but whether the plank or planks were being carried or stepped on appears to be part of the dispute. In any event, the plaintiff sustained an injury to his lower back during the performance of the exercise.

3. [3]

   On 27 November 2009 the plaintiff lodged a worker’s injury claim form. The plaintiff thereafter appears to have received conservative treatment for his back until December 2012 when he experienced an exacerbation of the back pain. In 2013 an MRI showed a number of issues at the L2/3, L4/5 and L5/S1 levels of his spine.

4. [4]

   On 4 August 2013 the plaintiff underwent an L5/S1 posterior and interbody fusion at the expense of the workers compensation insurer. On 27 May 2015 he was assessed by Dr Millons on behalf of the second defendant and found to have a whole person impairment of 20%. That was accepted by the second defendant. The plaintiff made a claim for lump sum entitlements and they were paid in July 2015. A mediation was held on 8 April 2016 but was unsuccessful.

5. [5]

   On 11 June 2016 the plaintiff filed a statement of claim against both defendants. A defence was filed by the second defendant on 14 June 2016 and by the first defendant on 19 August 2016.

6. [6]

   It is necessary to say something now about the provisions of the legislation that govern claims for damages by injured workers, because the motion with which this judgment is concerned seeks the leave of the court to overcome two impediments to the present claim proceeding. The first impediment is that the claim was commenced more than three years after the injury, contrary to s 151D of the Workers Compensation Act 1987 (NSW) (‘WC Act’). The second impediment concerns alleged inconsistency between the pleading in the statement of claim, and what had been included in a pre-filing statement served pursuant to s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘WIM Act’).

Legislation

1. [7]

   The legislative provisions set out below show the procedure that must be followed before a claim for work injury damages such as the present can be brought and pursued.

2. [8]

   The WC Act relevantly provides:

3. [9]

   The WIM Act relevantly provides:

The claim

1. [10]

   On 17 July 2015 the plaintiff served on the second defendant a pre-filing statement dated 30 June 2015 pursuant to s 315 of the WIM Act. That statement relevantly said this:

2. [11]

   The statement of claim filed in the District Court on 11 June 2016 relevantly pleaded:

3. [12]

   The second defendant in its defence filed 14 June 2016 relevantly pleaded:

The plaintiff’s notice of motion

1. [13]

   It may be observed that, although the second defendant raised the matter of the issue contained in s 318 of the WIM Act and the limitation period in s 151D of the WC Act, it took no steps to strike out the statement of claim on either basis. The issue has now only arisen for consideration because on 24 May 2018 the plaintiff filed a notice of motion seeking the following orders:

2. [14]

   No affidavit in support of the notice of motion was filed. When it came before the Registrar on 1 June 2018 it was, by consent, stood over to 27 July 2018. On that day the parties handed short minutes of order to the Registrar and asked him to make the following orders by consent:

3. [15]

   The Registrar fixed the motion for hearing on 6 November 2018, provided for the filing and service of submissions by each of the parties on the date they were due to serve affidavits, and directed that the plaintiff was to file and serve any submissions in reply by 12 noon on 5 November 2018.

4. [16]

   The plaintiff did not file an amended notice of motion until 7 September 2018. The orders sought in that amended notice of motion were these:

5. [17]

   The prayer contained in the original notice of motion, that the motion be heard and determined at the same time as the trial of issues at hearing, was struck through, to show that it was not being pursued.

6. [18]

   The plaintiff filed and served an affidavit of the plaintiff sworn 3 September 2018 and an affidavit of the plaintiff’s solicitor sworn 6 September 2018. The affidavit of the plaintiff’s solicitor exhibited what appears to be almost the entirety of his file.

7. [19]

   On 2 November 2018, in accordance with the directions made by the Registrar, the second defendant served its submissions and an affidavit sworn by its solicitor. The material in the affidavit tended to show that the late filing of the statement of claim had caused actual prejudice to the second defendant in relation to the ability of the second defendant to obtain documents or witnesses with a recollection of what occurred in 2009.

8. [20]

   On 5 November, and in accordance with the directions made by the Registrar, the plaintiff served submissions in reply. He also served a further amended notice of motion on which he sought to rely at the hearing of 6 November. The only difference between the amended notice of motion and the further amended notice of motion was that the prayer for relief contained in the original motion, that the motion be heard and determined at the same time as the trial of the issues at hearing, was reinstated in the further amended notice of motion.

The hearing of the notice of motion

1. [21]

   At the outset of the hearing of the notice of motion, Mr Hart of counsel for the plaintiff sought, pursuant to the reinstatement of that prayer for relief in the further amended notice of motion, that the whole of the hearing set down before me be dealt with at the outset of the final hearing of the proceedings. One of the bases put forward for that course was to avoid a doubling up of cross-examination which would in the first instance be relevant, particularly, to the application to extend time under s 151D, and thereafter in relation to the substantive claim.

2. [22]

   In the alternative, Mr Hart sought an adjournment of the hearing of the notice of motion because he said that the service of the defendant’s solicitor’s affidavit detailing actual prejudice on the part of the second defendant had taken him by surprise, and the plaintiff needed time to respond to it. In particular, the plaintiff needed to find the author of the second defendant’s document entitled “Register of Injury/Illness Form”, with a view to exploring with that person and a person named as a witness on that Form, Colin Price, how the accident had happened.

3. [23]

   I heard argument from both counsel about the appropriate course having regard to the issue of cross-examination and to the recent service of the evidence concerning actual prejudice. Counsel for the second defendant did not oppose the motion being adjourned for hearing to a later date because of the service of that evidence, but resisted the notion that the relief in the notice of motion should be dealt with at the final hearing. In the alternative, he submitted that, even if the extension under s 151D should be determined at the final hearing, the relief sought under s 318 should be dealt with in advance of the final hearing because it was a discrete point.

4. [24]

   I enquired of the parties if there was any reason that the issue arising under s 318 could not be dealt with without the need for any adjournment. It seemed to me that the s 318 issue would not involve the need for any form of cross-examination of the plaintiff. Counsel agreed that the s 318 issue could be dealt with by submission alone. Accordingly, that was the course that I followed.

5. [25]

   It was also accepted by the parties that if I found the s 318 issue contrary to the interests of the plaintiff, the statement of claim should be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW), notwithstanding that the second defendant had not filed a notice of motion to that effect. The second defendant made an oral application to that effect under r 13.4.

6. [26]

   Accordingly, unless I determined the s 318 issue in the plaintiff’s favour, it would not be necessary for me to determine whether or not the application under s 151D should proceed at a date prior to the trial or at the trial itself. For the reasons which follow, I find that s 318 has been contravened by the plaintiff by reason of the statement of claim he filed being materially different from the proposed statement of claim that formed part of the pre-filing statement. I also find that the discretion contained in s 318(2) is not enlivened for the reasons which follow.

The issue under s 318 WIM Act

1. [27]

   The plaintiff made three submissions. The first was that the difference between the pre-filing notice and the statement of claim was immaterial in terms of the operation of s 318. Secondly, it was submitted that, even if it was material, the second defendant knew about what is pleaded in the statement of claim from the very beginning. Thirdly, the plaintiff submitted that the second defendant acquiesced in the matter, despite there being legislative provisions that it could have invoked at a much earlier time. The plaintiff submitted that the particular legislative provision was s 317 of the WIM Act. The plaintiff submitted that if the second defendant considered that the pre-filing statement was defective, it ought to have notified the claimant in accordance with that section, and moved to strike it out.

2. [28]

   It is first necessary to deal with the material relied upon by counsel for the plaintiff to demonstrate that the second defendant knew from the beginning the way the accident occurred. His first submission, that the description was not materially different for s 318 purposes, appeared to be closely related to that matter.

3. [29]

   On 27 November 2009 the plaintiff completed a worker’s injury claim form. Section 2 headed “Incident and worker’s injury details” read as follows:

4. [30]

   The plaintiff served its pre-filing statement on 17 July 2015. I have set at [10] above the description of the accident which appeared in paragraphs 2 and 5 of that document.

5. [31]

   On 29 July 2015 the solicitors for the second defendant wrote seeking particulars of the claim. Those particulars were provided on 19 August 2015. The following questions and answers are relevant:

6. [32]

   On 17 October 2015 the second defendant served a s 74 dispute notice. Mr Hart relied on a part of this Notice to show that the second defendant always understood how the accident happened. He relied on the following in the Notice:

7. [33]

   A medical report by Dr Erin Roane dated 8 December 2009 served with the pre-filing statement said:

8. [34]

   A medical report by Dr Richard Ferch dated 27 April 2010, also served with the pre-filing statement, said:

9. [35]

   In a report from Associate Professor Kleinman dated 18 November 2014, also served with the pre-filing statement, the following appears:

10. [36]

    In an Earning Capacity Assessment dated 7 October 2015 served on the second defendant, the Executive Summary said this:

11. [37]

    In the s 66 claim served in March 2015, the following appears:

12. [38]

    Finally, Dr Millons examined the plaintiff for the second defendant. He assessed his whole person impairment at 20%. In his report of 27 May 2015 Dr Millons said:

13. [39]

    In his submissions, Mr Hart took me to the pre-filing statement at p 59 of the Exhibit to the affidavit of the plaintiff’s solicitor and said:

14. [40]

    However, Mr Hart submitted that the claim form, the s 66A agreement, the histories in the medical evidence and the second defendant’s actual knowledge, all showed that the plaintiff lost his footing, fell a distance and jarred his back.

15. [41]

    In my opinion, the statement of claim is materially different from the proposed statement of claim that formed part of the pre-filing statement. The essential difference is the description of the cause of the injury to the back. Paragraph 5 of the pre-filing statement said that the requirement to lift the plank of wood and twist the plaintiff’s body in the direction of where the planks were to be transported caused him to suffer the loss and damage. That was reinforced by paragraph 7(a) which defined the risk of injury as the requirement to lift, twist and transport the planks of wood. In the filed statement of claim, paragraph 4 repeated that the requirement was to lift, twist and transport the wood, but then asserted that it was the loss of his footing which caused him to suffer the loss and damage. If there was any doubt, paragraph 6(a) defined the risk as the risk of falling rather than the risk from a requirement to lift, twist and transport.

16. [42]

    It is clear from the statement of claim that the alleged mechanism of the injury was the fall rather than the twist from the requirement to lift and transport the wood. The accident described in the filed statement of claim would require a different investigation from that described in the proposed statement of claim. The actual mechanism of the injury is likely to be different because injury from a fall would result either from an impact or a severe jarring if the fall was broken in some way, perhaps by a harness as appears to be asserted in some documents.

17. [43]

    No-one reading the pre-filing statement, the claim documents or the medical reports could have understood that the plaintiff was injured as a result of a fall. The first time a fall is asserted is in the statement of claim. Mr Hart appeared to concede that the description in the pre-filing statement, which was consonant with the description in all of the other documents except the statement of claim, was wrong. He submitted, however, that it was not materially different because there was no dispute that the injury occurred in the course of a team-building exercise, conducted above the ground between trees, involving a plank or planks of wood, with the plaintiff secured by a harness. As a description of the activity being performed, that is correct, but there are two essential matters not made clear from that description. The first is whether the plaintiff was carrying a plank or was required to walk on the plank. The second is the plaintiff’s fall.

18. [44]

    The second issue is whether leave should be granted to file the statement of claim notwithstanding that it is materially different from the proposed statement of claim. Sub-section (2) provides that leave is not to be granted unless the material concerned was not reasonably available to the party when the pre-filing statement was served, and the failure to grant leave would substantially prejudice the party’s case.

19. [45]

    Judge Taylor DCJ drew attention to the unsatisfactory drafting of s 318(2) in Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 at [39]-[44]. I agree with his Honour at [42] that the “material concerned” must refer to material suggestive of the different claim that the plaintiff now seeks to maintain. However, where the “material” concerns what actually happened in the accident, and it is not here submitted that the plaintiff was not aware at the time of how the accident occurred, the material concerned must have been available to the plaintiff. That is, the plaintiff must have known how the accident happened. In those circumstances the plaintiff here does not satisfy paragraph (2)(a) with the result that the discretion in sub-s (2) is not enlivened.

20. [46]

    Section 318 does not, in terms, allow any exception on the basis that the other party knew of the “material concerned”, so that no prejudice can be demonstrated against that party. However, I would accept that if the plaintiff was able to demonstrate some form of estoppel or acquiescence on the part of the second defendant, the provisions of s 318(1) may not operate to the benefit of that defendant. However, this was not a matter argued at the hearing, and I express no firm view about it.

21. [47]

    As may be seen from the material I have set out earlier, there is nothing that suggests any knowledge on the part of the second defendant that the accident occurred in the way now pleaded in the statement of claim. Indeed, a survey of that material tends to indicate that the very first time the plaintiff asserted that he injured his back by a fall was in the statement of claim.

22. [48]

    The most supportive document the plaintiff could point to in the documents was that contained in the executive summary of the Earning Capacity Assessment where the plaintiff said “he felt the plank ‘drop’ and as a result he felt a jarring of his lower back”. In my opinion, it could not inferred from that description that the plaintiff fell or lost his footing as the statement of claim describes.

23. [49]

    Since I have found that there was no basis for the second defendant to know or understand that the injury occurred as a result of a fall, it is not strictly necessary to consider the plaintiff’s argument that the second defendant failed to attempt to strike out the pre-filing statement on the grounds that it was defective under s 317. The plaintiff’s submission concerning this matter was difficult to understand, so I should set it out from the transcript:

24. [50]

    The assumption behind the submission must be that the section was worded widely enough to cover the situation where the other party knows that what is contained in the pre-filing statement is not correct. The success of the submission in the first instance turns on the meaning of the word “defective”. Section 317(1) gives some clue as to what is meant by defective as expressed in the sub-section. That is, if the statement is incomplete it is regarded as defective.

25. [51]

    The Macquarie Dictionary gives as the meaning of defective:

26. [52]

    In my opinion, the word “defective” is concerned with form and not substance. The plaintiff’s submissions focused on the substance of what was contained in the pre-filing statement. The idea that the section could be directed to the correctness or otherwise of what was contained in the statement highlights the difficulty of that being the correct construction of the section. In many or most cases, the defendant would be unaware of the truth or otherwise of the substance of what is set out. In any event, the defendant is entitled to rely on the proposed claim in the pre-filing statement as accurately reflecting the case the plaintiff will make. That is surely the legislative intention behind s 318. Even if the second defendant believes the injury occurred in a different way, that would not mean that the pre-filing statement was defective as opposed to asserting wrong facts or making wrong allegations.

27. [53]

    In my opinion, s 317 has no operation for that reason. However, even if it did, there is no evidence in the present case that the second defendant knew of the position the plaintiff came to maintain in the filed statement of claim.

28. [54]

    The submission also seems to be suggesting, in addition to the supposed knowledge of the second defendant about how the accident really happened, that if the second defendant had paid compensation (e.g. under s 66 WC Act) on the basis of a belief that the accident happened in one way, it was entitled to strike out a pre-filing statement where it had ascertained that the accident did not happen in the way the pre-filing statement asserted.

29. [55]

    This submission appears to confuse the second defendant’s obligation to pay compensation where a person is assessed as having a permanent impairment of 10% arising out of or in the course of employment on the one hand, and a determination of precisely how the injury was sustained on the other hand. The payment of compensation is not in that way directly concerned with the description of the accident.

30. [56]

    The submission also seems to assume that the second defendant became aware of the actual mechanics of the accident after it paid compensation but before or at the time of the service of the pre-filing statement. There is in fact no evidence that the second defendant knew that the accident was said to be a fall until the statement of claim was served.

Conclusion

1. [57]

   As noted earlier, the parties accepted that if I determined that the statement of claim was materially different from the proposed claim in the pre-filing statement, the proceedings should be dismissed against the second defendant pursuant to UCPR r 13.4. In the circumstances, no reasonable cause of action is disclosed.

2. [58]

   Accordingly, I make the following orders:

   1. (1)

      Dismiss the plaintiff’s further amended notice of motion filed 5 November 2018.

   2. (2)

      Dismiss the proceedings against the second defendant pursuant to UCPR r 13.4.

   3. (3)

      The plaintiff is to pay the second defendant’s costs of the proceedings.