| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LIMITED [2013] WADC 90 CORAM : FENBURY DCJ HEARD : 20 MAY 2013 DELIVERED : 12 JUNE 2013 FILE NO/S : CIV 638 of 2013 BETWEEN : GEOFF BARKLA Plaintiff
AND
ALLIANZ AUSTRALIA INSURANCE LIMITED
First Defendant
WORKCOVER WA
Second Defendant
Catchwords: Practice and procedure - Summary judgment - Turns on own facts Legislation: Workers' Compensation and Injury Management Act 1981 s 308 Result: Judgment for the first and second defendants
(Page 2) Representation: Counsel:
Plaintiff : In person
First Defendant : Mr M J Civitella
Second Defendant : Mr T E Pontre
Solicitors:
Plaintiff : Not applicable
First Defendant : CCS Insurance Law
Second Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barkla v Alianz Insurance [2013] WASCA 21
Barkla v G4S Custodial Services [No 2] [2012] WADC 78
Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686
(Page 3)
1 FENBURY DCJ: Each of the defendants in this matter, in essence, applies to strike out Mr Barkla's statement of claim pursuant to O 20 r 19(1) Rules of the Supreme Court1971 (RSC) on the ground that amongst others, it discloses no reasonable clause of action. An order that judgment thereafter be entered for the defendants is also sought pursuant to O 16 r 1(1)(a).
2 The principles that are to be applied in an application of this kind were not in dispute. The power to order summary judgment in these circumstances is to be exercised with great care, and should not be exercised unless it is clear that there is no real question to be tried. It was also accepted that it is only in a very clear case that the summary intervention of the court will be justified because litigants are not to be deprived of the right to submit genuine controversies for determination: see for example Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 [14], Sackville J. 3 I do not think it is necessary to set out the facts of this case in any detail. In Barkla v G4S Custodial Services [No 2] [2012] WADC 78, Commissioner Gething set out the factual background of the matter in his reasons at [5] – [25] inclusive. 4 Those reasons are set out in full in the judgment of the Court of Appeal on an appeal brought by Mr Barkla, which was heard and determined on 31 January 2013: Barkla v Alianz Insurance [2013] WASCA 21. 5 The Court of Appeal recited Commissioner Gething's summary of the background without criticism and, furthermore, found the commissioner's reasoning for finding against Mr Barkla 'unimpeachable'. 6 Further, the Court of Appeal determined that the proceeding before it was a waste of time because liability had been admitted by the defendants, and compensation had already been paid to Mr Barkla. 7 The proceedings before this court do not relate to Mr Barkla's claim for compensation under the Workers' Compensation Injury Management Act 1981 but to injury allegedly caused to Mr Barkla by the delay in negotiation and settlement of that claim. 8 Mr Barkla seeks to plead his statement of claim in the following terms: 1. The plaintiff is a WorkCover victim. (Page 4)
2. The defendants were aware of the plaintiff's medical condition and the fact that the plaintiff was refereed for medical treatment by a WorkCover accredited medical practitioner and an expert psychiatrist and even though both defendants were aware of this, both defendants denied medical treatment to the plaintiff without any expert medical evidence, something the plaintiff views as 'medical negligence and fraud by deception'. 3. The plaintiff submits that both Allianz Australia Insurance Limited and WorkCover WA failed in their duty of care to the plaintiff by unlawfully denying the plaintiff medical treatment referred to by medical experts and despite medical certificates. PARTICULARS 4. The plaintiff refers to a referral letter by Dr Poh Yong dated 15 April 2011 and the report of Dr Michelle Atchinson dated 23 August 2011 (dated stamped by WorkCover WA 4th and 7th October 2011). 5. The defendant Allianz Australia Insurance Limited failed to allow the plaintiff medical treatment referred to by the above medical experts until his WorkCover claim was finally accepted by Alliance Australia Insurance Limited on 3 July 2012. Some 21 months after the initial date of injury, despite medical certificates. 6. The defendant WorkCover WA 'the arbitrators' in this dispute, wilfully allowed Allianz Australia Insurance Limited to deny the plaintiff medical treatment despite the recommendations of the medical experts, Dr Poh Yong and Dr Atchinson. 7. The plaintiff submits that Allianz Australia Insurance Limited has been wilfully fraudulent in its conduct under s 308 of the Workers' Compensation and Enduring Management Act 1981 as Allianz Australia Insurance Limited have benefited by denying the plaintiff medical treatment and his entitlements, despite medical certificates and expert reports. 8. The plaintiff submits that WorkCover WA failed to comply with s 100 of the Workers' Compensation and Injury Management Act 1981 and was wilfully negligent in its duty of care, despite medical certificates and expert reports. 9. The plaintiff submits that neither defendant Allianz Australia Insurance Limited or WorkCover WA has any expert medical evidence to deny the plaintiff medical treatment and his entitlements under any Australian prescribed means and/or statues [sic]. (Page 5)
10. The plaintiff has various letters and emails to and from some of the following (lists personnel). 11. The plaintiff notes that he is within the timeframe allowed to proceed with this case, as the plaintiff was still being denied medical treatment and its entitlements until 2 July 2012 by Allianz Australia Insurance Limited and WorkCover WA. 12. The plaintiff reserves the right to call on any part and/or section of the Workers' Compensation and Injury Management Act 1981 and the Public Sector Management Act 1994. 13. The plaintiff seeks orders of compensation from the District Court for medical negligence and fraud by deception. 9 In pars 2, 3, 5 and 6 of the statement of claim there is repeated reference to an allegation that Mr Barkla was 'denied medical treatment' or that a defendant 'failed in its duty of care by unlawfully denying the plaintiff medical treatment … failed to allow the plaintiff medical treatment … wilfully allowed the first defendant to deny the plaintiff medical treatment' and the like. 10 These allegations in part seem to arise from remarks made by a medical practitioner, Dr Poh Yong where she (or he) said in a report dated 15 April 2011 which states: Thank you for seeing the above patient who suffers from work related stress disorder and depression following an verbal abuse [sic] and he was demoted after that. He has a lot of anger and depression in regards to the event. Having to face rejection from WorkCover Western Australia has further aggravated his illness. He turn into alcohol when stress [sic] and he is currently on Lexapro 10 mg daily compliance has been an issue as well. (underlining mine) 11 The claims identified in pars 2, 3, 5 and 6 disclose no reasonable cause of action and are misconceived. The first defendant which is an insurance company and the second defendant which is a government entity cannot 'deny or fail' to allow medical treatment. An insurance company may decline to provide funding but, in that event, a worker is not denied treatment. The worker, obviously, is entitled to obtain treatment himself. What I think Mr Barkla means is that the defendants failed to fund medical treatment and given Mr Barkla could not afford to pay for it on his own then blame is alleged. Either way the claim is misconceived and no action can arise. That is not to say that it is impossible an injured worker's condition might deteriorate because a claim is delayed in settlement. I have no difficulty in accepting that that (Page 6)
can occur. However there is no legal remedy for such an event over and above the remedy sought and obtained through the workers' compensation claim itself. As to that of course Mr Barkla has received all of his entitlements, the maximum, under the Act, as I shall mention later. 12 I refer to the reference to 'fraud by deception' and the reliance in par 7 of the statement of claim upon s 308 Workers' Compensation and Injury Management Act 1981. 13 Section 308 of that Act states: A person who fraudulently obtains or fraudulently attempts to obtain any benefit under this Act, by malingering or by making any false claim or statement, and any person who, by a false statement or other means, aids or abets a person in so obtaining or attempting to obtain, commits and offence. Penalty $5,000. 14 Reliance upon this section by Mr Barkla asserting that the defendants have, somehow, breached this section, is nonsensical. The action sought to be mounted relying upon this section has no chance of success. Clearly, on reading of the section, it can be seen that it targets plaintiffs, workers, who seek to mount fraudulent claims. The mounting of fraudulent claims is not an issue in the case. The claim relying on s 308 discloses no reasonable cause of action. 15 As I have mentioned Mr Barkla's claim in this action focuses on a period said to be about 21 months between when the claim was commenced and the defendant accepted liability. It appears to me the period might be a little longer than that being from March 2010 until July 2012 however it does not matter for the purpose of these remarks. After the defendants accepted liability Mr Barkla was paid and received all of his entitlements under the Workers' Compensation and Injury Management Act. Mr Barkla was paid $198,365 being the full prescribed amount of weekly compensation payments payable under the Act. This was not paid in a lump sum. From the date of acceptance of his claim by the defendant he was back paid what was owed to that point and then he was paid weekly payments until the prescribed maximum of $198,365 was reached. 16 Mr Barkla has also been paid $9,717.94 for medical treatment expenses and $2,548.78 in vocational rehabilitation provider payments both of which he continues to receive. 17 The claim that there is some liability in the defendants for the period alleged discloses no reasonable cause of action and cannot succeed. (Page 7)
Claims for workers' compensation can be disputed by defendants on various grounds. Sometimes of course the claim is fraudulent. But in other cases, and this would appear to be the situation in this case, there can be real dispute about what is the cause of a psychiatric or psychological condition. It is not just a question of whether a worker has a psychiatric or psychological condition. There is also often an issue about how it was caused and whether it was caused as the result of events in the workplace. 18 Sometimes these issues take time to resolve. The assertion that there is some additional legal liability in the defendants' because in Mr Barkla's view it took too long to resolve and that this should be compensated, additionally, by way of damages, cannot succeed. 19 In my view both the first and second defendants are entitled to the relief they seek. The following orders should be made by reference to the two chamber summons filed. By reference to the chamber summons filed by the first defendant, the court orders that: 1. The whole of the plaintiff's statement of claim dated 14 February 2013 be struck out pursuant to O 20 r 19(1) of the RSCon the basis that it discloses no reasonable cause of action. 2. It is ordered that judgment be entered for the first defendant against the plaintiff pursuant to O 16 r 1(1)(a) of the RSC. 3. The plaintiff do pay the first defendant's costs of this application and the action to be taxed. 20 By reference to the chamber summons filed by the second defendant it is ordered that: 21 In terms, this means that the plaintiff's claim should be dismissed and the plaintiff should be ordered to pay the costs of both the first and second defendants to be taxed if not agreed.
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