Toohey v Richard Crookes Constructions Pty Limited

1. [1]

   By notice of motion dated 30 August 2022 the plaintiff seeks, firstly, leave to file and serve the proposed further amended statement of claim (‘ASC’), and secondly, the plaintiff be given leave to rely on the report of Deborah Hall dated 15 September 2021 (‘Hall Report’), pursuant to section 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘Wim Act’). The defendants oppose the first order sought. The second defendant opposes the second order sought.

2. [2]

   The plaintiff is Mark Anthony Toohey. The first defendant is Richard Crookes Constructions Pty Ltd. The second defendant is Lack Group Constructions Pty Ltd. The parties relied on two volumes of Court Books, Ex 1 and Ex 2.

Background

1. [3]

   Mr Mark Toohey is the plaintiff in a claim for damages for personal injury arising out an accident which occurred while performing work duties on 2 May 2018.

2. [4]

   The plaintiff was born on [XX] July 1964 and is presently 58 years of age. At the time of the subject accident, he was 53 years of age.

3. [5]

   As at the date of the accident the first defendant was engaged to perform construction work at premises identified as [XXX] Pemberton Street, Botany (‘the Premises’). The plaintiff’s claim against the first defendant is governed by the Civil Liability Act 2002 (NSW).

4. [6]

   The second defendant is the plaintiff's employer. It directed the plaintiff to attend the premises in order to perform labouring work under the direction and supervision of the first defendant. The plaintiff’s claim against the second defendant is governed by the Workers Compensation Act 1997 (NSW) (‘WC Act’).

5. [7]

   The first defendant has filed a cross-claim against the second defendant. As against the plaintiff, the second defendant relies on s 318 of the WIM Act to oppose the amendments to the proposed ASC. The first defendant adopts the second defendant’s submissions on this topic, although it acknowledges that s 318 of the WIM Act does not apply to the claim made against it. As the application under s 318 of the WIM Act does directly concern the first defendant, I do not find its submissions made in relation to section 318 relevant.

Legislative scheme

1. [8]

   The WIM Act and the WC Act exclusively specify the procedures that must be followed before a claim for work injury damages can be pursued, and the entitlements available. In this regard, the WIM Act and WC Act are comprehensive codes, and legislation such as the Civil Liability Act 2002 (NSW) has no application.

2. [9]

   Sections 151A and 151D of the WC Act reads as follows:

3. [10]

   Sections 254, 262, 315, 316 and 318 of the WIM Act provides as follows:

4. [11]

   This legislative scheme is intended to encourage "early identification of issues and early resolution of matters without court proceedings”: Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [11] (per Hodgson JA, Gyles AJA agreeing), cited in Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [5] (per McColl JA) and Witkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [11] (per Hoeben, Campbell and Barrett JJA agreeing).

5. [12]

   Building on this proposition, Cavanagh J opined in Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452 (‘Sohailee’) at [22]:

6. [13]

   In relation to the expressions “materially different”, the parties referred to Sohailee and Hall v Ecoline Pty Ltd t/as Treetop Adventure Park (‘Hall’) [2018] NSWSC 1732.

7. [14]

   In Sohailee, Cavanagh J explained at [23]-[24] as follows:

8. [15]

   An example of the operation of s 318 of the WIM Act may be found in Hall. In that case, Davies J held that the cause of the plaintiff’s injury that had been identified in the pre-filing statement (lifting wooden planks) was materially different to that which the Plaintiff sought to advance in the statement of claim (a fall): Hall at [41]. 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.

9. [16]

   In Hall, Davies J stated at [41]-[43]:

10. [17]

    Consequently, as the Court of Appeal has noted, parties must be particularly diligent when attending to pre-filing steps as these provisions involve “potential traps and strategic decisions for both parties”: Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna [2008] NSWCA 354 at [37] (per Basten, Gyles, and Hoeben JJA agreeing).

The plaintiff and second defendant’s pre-filing statements

1. [18]

   On 4 December 2020, the plaintiff served its pre-filing statement on the second defendant (Ex 1). Relevantly, in ASC, the plaintiff stated at [9] that “At approximately 11.30am the claimant was lifting a very heavy paver onto a pallet, which was then stacked to chest height. As he placed the paver on the stack it started to slide. The claimant pushed forward to prevent it falling and as he did so, experienced severe pain and discomfort in his low back.”

2. [19]

   On 14 January 2021, the second defendant served its pre-filing defence on the plaintiff. Relevantly, the second defendant denied liability and each of the particulars of negligence raised by the plaintiff did “not admit the mechanism of injury as alleged” and clearly specified that it anticipated obtaining further evidence prior to any hearing including subpoenaed documents.

3. [20]

   The second defendant was not a party to this statement of claim. The pleading in the statement of claim on 16 June 2020 is against Richard Crookes Constructions Pty Ltd as the sole defendant. The statement of claim pleaded the following at [5]-[7].

4. [21]

   In May 2018 the plaintiff attended the said premises for the purpose of performing work and as such placed himself under the direction, control and supervision of the Defendant, its servants and agents.

5. [22]

   On 2 May 2018 whilst the plaintiff was performing work at the said premises the plaintiff was directed by the foreman of the worksite, an employee of the defendant, to perform heavy manual work and despite the complaints of the plaintiff that the work was excessive, the plaintiff performed such duties and as a consequence sustained injury, loss and damage.

6. [23]

   On 16 April 2021, the plaintiff filed an amended statement of claim joining the second defendant. The amended statement of claim reflected the pre-filing statement of 4 December 2020.

7. [24]

   Paragraphs [8] and [9] of the amended statement of claim filed 16 April 2021 read:

8. [25]

   According to the second defendant, in [8] of the amended statement of claim, the plaintiff pleads a nature and conditions claim arising out the duty to perform heavy manual labour such as lifting, carrying, pushing, and pulling actions. The pleading in the amended statement of claim is the same as that in the pre-filing notice and the amended statement of claim at [9] is the same as that contained in the first paragraph of [9] in the ASC.

9. [26]

   The amendments that are sought appear in the ASC in relation to the second defendant, at paragraphs [8], [9] and [10] including (vii) to (xv), being the additional particulars of negligence. They read:

The plaintiff’s evidentiary statement

1. [27]

   It is noted that the plaintiff details in his evidentiary statement dated 20 April 2022 at [28] the following:

Issue – the proposed further amended statement of claim (ASC)

1. [28]

   The plaintiff submitted that it is apparent that the pleading in the amended statement of claim requires alteration in order to be consistent with the plaintiff's evidence.

2. [29]

   The plaintiff argued the ASC, in respect of the mechanism of injury, details an additional feature of the incident which could be described as de minimis.

3. [30]

   As stated previously, the plaintiff seeks to include the factual allegations:

4. [31]

   The plaintiff submitted that the Court should consider the following matters in consideration of the plaintiff’s application: the nature and degree of any amendment and whether or not the defendant suffers any prejudice.

5. [32]

   The Court allowed the amendment as set out in paragraph 9. Neither of the defendants have filed any evidence before the Court indicating that these amendments cause them any prejudice. The Court notes that this matter was listed for hearing of the Motion on 12 April 2023. Should the defendants require any time to address the additional feature of the accident by way of expert evidence, there would be no objection by the plaintiff.

6. [33]

   Put succinctly, the plaintiff’s submission in respect of the amendment to paragraph 9 can be summarised as follows: in respect of the first defendant, the orders should be granted pursuant to s 64 of the Civil Procedure Act 2005 (NSW) for the reasons stated above, and in respect of the second defendant, the Court would have regard to s 318 of the WIM Act.

7. [34]

   The plaintiff makes reference to the initial statement of claim served on the second defendant in the pre-filing statement. The ASC expands the allegations of negligence against the second defendant as set out in (vii)-(xv) inclusive. The amendments, the plaintiff contends, do not result in a materially different proposed statement of claim. Alternative, leave would be granted pursuant to s 318(1) of the WIM Act.

8. [35]

   Pursuant to s 318(1)(a) of the WIM Act, the second defendant submitted that the plaintiff 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 plaintiff, except with leave of the court.

9. [36]

   The second defendant claims this assertion at [9] of the ASC is clearly materially different to that advanced in the pre-filing statement because it now, per the second defendant’s view, suggests that the cause of injury was two-fold; firstly, from the act of lifting the paver from waist height to the top of the stack, and secondly, from the act of attempting to stop the stack from overbalancing. This contention the second defendant contends was never previously advanced by the plaintiff, either implicitly or explicitly, in the pre-filing statement. Accordingly, the second defendant’s argument is that, in similar terms to that considered by Davies J above, the proposed insertion marks a significant change “to the description of the cause of the injury and the “alleged mechanism of the injury”: Hall at [41].

10. [37]

    If the proposed insertion is materially different, leave to amend may only be granted pursuant to the conjunctive requirements in s 318(2) of the WIM Act.

11. [38]

    The second defendant claims that it is not clear from the submissions filed by the plaintiff as to why he contends leave should be granted. In this regard, it merely states at [11] of the plaintiff’s submissions that “it is apparent that the pleading in the ASC requires alteration in order to be consistent with the plaintiff's evidence". The second defendant argues that this is not, in and of itself, a basis for the granting of leave under s 318(2) of the WIM Act.

12. [39]

    In any event, the second defendant submitted that court cannot be satisfied of the first limb at s 318(2)(a) of the WIM Act, namely that the material concerned was not reasonably available to the plaintiff when the pre-filing statement was served. The second defendant explained that the proposed insertion deals with matters which have always been known (or should have been known) to the plaintiff - that being, the very basis or cause of the injury. In such circumstances, the second defendant affirms, it is nonsensical to suggest that this state of knowledge was not reasonably available to the plaintiff at the time of the pre-filing statement. This issue was addressed by Davies J in Hall, who noted at [45] that:

13. [40]

    By similar reasoning, it is submitted that the plaintiff has always been aware of the basis or cause of his injury and therefore leave should not be granted for the materially different insertion at paragraph [9]: Hall at [45].

14. [41]

    The proposed ASC also seeks to insert nine additional particulars under the heading "Particulars of negligence against the second defendant' from vii to xv. These additional particulars are wide ranging and expand the scope of the purported negligence of the second defendant.

15. [42]

    It has been held that “in some circumstances new particulars of negligence could fall within the meaning of “materially different" in s 318(1) of the Workplace Injury Act. In some circumstances, a comparison of just the particulars of negligence may lead to a finding of material difference": Sohailee at [26].

16. [43]

    In light of the above, the second defendant submitted that the additional particulars (set out earlier in this judgment) alters the nature of the case that the second defendant would need to respond to. It calls into question the “alleged mechanism of the injury” (Hall at [42] (Davies J)) and, as per above, whether it “would require a different investigation from that described in the proposed statement of claim". On such grounds, the submissions of the second defendant contended that the proposed insertion of the nine particulars is thereby materially different to the pre-filing statement.

17. [44]

    In assessing whether leave ought to be granted pursuant to s 318(2) of the WIM Act, the plaintiff contends at [28] of their submissions that the nine proposed particulars “reflect the contents of the report of Ms Hall, which as stated above, was received [from the first defendant] post service of the pre-filing statement.” However, as the second defendant outlined, nowhere in the plaintiff’s pre-filing statement is any reference made to relying on subsequent liability reports or, in fact, any other material. Rather, the plaintiff’s pre-filing statement specified, in its entirety, all of the material he intended to base his case on.

18. [45]

    Further, the nine particulars also concern matters which were reasonably known (and available) to the plaintiff when he served the pre-filing statement in December 2020. By that time, the plaintiff had obtained a liability report of David Dubos Consulting Pty Ltd dated 20 August 2020 which duly canvassed the scope of any alleged failures by the second defendant. It is open for the Court to find that a forensic decision was made by the plaintiff at the time to base his case against the second defendant on the six particulars noted in the pre-filing statement. On such grounds, the defendant submitted no leave ought to be granted to insert the additional particulars into the FASOC.

19. [46]

    Having summarised in detail the parties’ submissions, I will detail my finds.

20. [47]

    I have carefully examined the plaintiff’s pre-filing statement, the original statement of claim, the amended statement of claim, the ASC and the plaintiff’s evidentiary statement. In the original statement of claim, [7] alleges a nature and conditions type of negligence claim. All the other documents and pleadings all involve similar pleadings as to how the accident occurred.

21. [48]

    In both the pre-filing statement of claim and the ASC, the plaintiff was lifting a very heavy paver onto a pallet, which was stacked at chest height. As he placed the paver on the stack it started to slide. The mechanism of injury changes slightly but is not materially different. In the pre-filing statement, the plaintiff alleges that he pushed forward to prevent the pallet falling and as he did so, he experienced severe pain and discomfort in his lower back. It is my view that the ASC is not materially different to the pre-filing statement. The investigations that need to be conducted by the second defendant are similar.

22. [49]

    Section 64 of the Civil Procedure Act 2005 reads:

23. [50]

    Even without the benefit of s 64 of the Civil Procedure Act 2005, I would grant leave to the plaintiff to file the ASC. The second defendant has not demonstrated any prejudice.

24. [51]

    It is my view that these amendments in ASC are made for the purpose of determining the real questions raised. The additional particulars to paragraph [10] of the ASC are those set out in the Hall Report. Hence it is my view that the plaintiff is granted leave to file the ASC. Such ASC is to be filed and served within 14 days.

Issue - leave to rely on the liability report of Deborah Hall

1. [52]

   The first defendant neither consents to or opposes the leave sought in relation to the ability of the plaintiff to rely upon the report of Ms Hall. The first defendant served a liability report of Deborah Hall dated 15 September 2021 on the plaintiff on 17 September 2021 (‘Hall Report). This date post-dates the plaintiff’s service of the pre-filing statement against the second defendant (employer) which was served on 4 December 2020.

2. [53]

   The amendments to the further ASC reflect the contents of the report of Ms Hall, which as stated above, was served over a year after the serving of the pre-filing statement on the second defendant/employer.

3. [54]

   The second defendant submitted that, in the plaintiff’s submissions, the plaintiff has not identified the precise basis on which it seeks leave to rely on the Hall Report. If it is the case that the plaintiff is relying on s 318(1)(d), then this provision states that a party “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, except with leave of the Court. In determining whether something has been “disclosed', the Court of Appeal has held that this section does not require “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": Wilkinson v Perisher Blue Ry Ltd [2012] NSWCA 250 at [219] (per Hoeben JA, Campbell and Barrett JJA agreeing).

4. [55]

   In assessing whether leave be granted, and notably the requirement at s 318(2)(a), it is critical to note that the Hall Report was obtained by the first defendant and not the plaintiff. Further as specified above, in its pre-filing statement, the plaintiff made no reference to relying on subsequent liability reports or, in fact, any other material. Instead, the plaintiff outlined, in an exhaustive manner, all of the evidence in support of his claims.

5. [56]

   In such circumstances, the second defendant submitted that there is no basis for leave to be granted for the plaintiff to rely on the Hall Report.

6. [57]

   It is obvious that the plaintiff’s legal representatives are not clairvoyant. They could not have predicted that the first defendant would be relying on an expert report on liability in the future. Therefore, the plaintiff could not have been aware of the contents of the Hall Report at the time of the preparation of making the pre-filing statement. In these circumstances, I grant leave for the plaintiff to rely on the Hall Report.

Result

1. [58]

   I make orders in accordance with paragraphs [1] and [2] of the plaintiff’s notice of motion dated 30 August 2022.

Costs

1. [59]

   Costs are discretionary. Costs normally follow the event. The second defendants are to pay the plaintiff’s costs.

   1. (1)

      The plaintiff is granted leave to file and serve the proposed further amended statement of claim within 14 days.

   2. (2)

      The plaintiff is granted leave to rely on the report of Deborah Hall dated 15 September 2021 pursuant to s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

   3. (3)

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