November 2018

Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 proves fatal to a slip in the pleadings

In Hall v Ecoline Pty Ltd T/As Treetop Adventure Park [2018] NSWSC 1732 Davies J had to decide whether the plaintiff could rely upon a statement of claim which was materially different to his pre-filing statement.

The plaintiff was employed by Mars Australia Pty Ltd ((Mars) the second Defendant). At the time of his injury, the plaintiff was engaged in an off-site team-building exercise at an adventure park operated by Ecoline Pty Ltd t/as Treetop Adventure Park ((Treetops) the first Defendant).

There was no dispute the plaintiff injured his back during the team-building exercise. The issue in the proceedings was precisely how the plaintiff had injured himself.

Following his injury, the plaintiff completed a claim form, sought medical treatment and made a claim for lump sum compensation based upon an injury due to lifting, twisting and moving or transporting planks of wood. None of those records recorded the plaintiff’s injury as having occurred due to a fall during the off-site team-building day.

Having satisfied the 15% WPI threshold, the plaintiff gave notice of a claim for work injury damages and served a pre-filing statement, which were based on an injury due to lifting and twisting while moving planks of wood during the team-building exercise.

The plaintiff and Mars engaged in an unsuccessful mediation. The plaintiff commenced proceedings against Treetops and Mars. The mechanism of injury in the statement of claim extended the mechanism of injury to include a fall.

In its defence relying upon S 318 (1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Mars disputed the plaintiff could rely upon injury based upon a fall in the statement of claim as it was materially different to mechanism of injury in the pre-filing statement.

The plaintiff’s notice of motion

The plaintiff filed a notice of motion seeking the Court’s leave to rely upon a materially different statement of claim to the pre-filing statement, that is to rely upon a mechanism of injury which included a fall.

Relevant legislation

Section 318 of the 1998 provides:

(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
….

(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.

Hearing of the plaintiff’s motion

On the hearing of the notice of motion, the plaintiff’s two main arguments were:

  • the difference between the pre-filing statement and the statement of claim were immaterial in terms of the operation of s 318 of the 1998 Act; and

  • even if the statement of claim was materially different to the pre-filing statement, Mars knew about what was pleaded in the statement of claim from the very beginning.

Davies J found Mars was unaware of the plaintiff’s allegation he fell until the statement of claim was served. Davies J also found the statement of claim was materially different to the pre-filing statement. The material difference in the description of injury in the statement of claim was the fall. 

At paragraphs 44 to 46 Davies J held:

“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.

… 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.

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.”

Davies J dismissed the statement of claim against Mars and ordered the plaintiff to pay Mars’ costs.

Conclusion

S 318 (2) (a) and (b) applies to statements of claims and defences filed by workers and employers respectively.

The enquiry required by s 318 (2) (a) and (b) of the 1998 Act is a two-stage process. The Court is not to grant leave to rely upon a materially different statement of claim or defence unless the “material concerned” was not reasonably available to the party when the pre-filing statement or defence was served. If that condition is met, the Court will then consider whether the failure to grant leave would substantially prejudice the party’s case.

It is only when the “material concerned” was not reasonably available to a party seeking to rely upon a materially different pleading that the Court will consider whether the failure to grant leave would cause substantial prejudice to it.

S 318 of the 1998 Act does not allow a party to rely upon a materially different pleading to the pre-filing statement or defence where the “material concern” was known to the other party and there is no prejudice to them. Therefore, it is imperative that pre-filing statement and defence are properly pleaded based upon what is known at the time.

Examples of when the Court will not grant leave to rely upon a materially different statement of claim or defence pursuant to s 318 of the 1998 Act include:

  • when the facts pleaded giving rise to the worker’s injury in the pre-filing statement were always known to them prior to the pre-filing statement being served.

  • raising new allegations of negligence which could have been pleaded on the facts and evidence before the pre-filing statement was served.

  • a limitation defence is not raised in the pre-filing defence, when it was available.

  • An election defence is not raised in the pre-filing defence, when it was available (prior to 2002 an injured worker had to elect between receiving lump sum compensation or common law damages).

  • raising grounds, or new grounds, for the partial defence by way of contributory negligence which could have been pleaded on the facts and evidence before the pre-filing defence was served.

  • it will prevent parties from relying upon reports, in their possession, which were not served with the pre-filing statement or defence.

The above list is not exhaustive but are typical of when s 318 (2) (a) and (b) of the 1998 Act issues may arise.

Section 318 (2) does not apply to refresher medical reports obtained after the issuing of a pre-filing statement or defence as that material was not reasonably available to the parties beforehand.

Author: Stephen Marsh

Further contact: Bruce McLean