Collins v Sydney Ports Corporation - [2012] NSWSC 1316

Supreme Court

New South Wales

Medium Neutral Citation: Collins v Sydney Ports Corporation [2012] NSWSC 1316
Hearing dates: 21 August 2012
Decision date: 31 October 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
Parties to bring in short minutes of the orders that they agree give effect to my conclusions, or in the absence of agreement, the orders for which they respectively contend.

Catchwords:
WORKERS' COMPENSATION - assessment and amount of compensation - entitlement to cost of funds management - contribution between joint tortfeasors with respect to cost of funds management - entitlement to pre-judgment interest - entitlement to interest on past payments of weekly compensation

PROCEDURE - costs - costs as between plaintiff and first defendant - general rule costs follow the event - costs as between plaintiff and second defendant - costs as between co-defendants - costs apportioned to reflect respective liabilities of first and second defendants
STATUTES - by-laws and regulations - construction - breach of statutory duty
Legislation Cited: Civil Procedure Act 2005
Construction Safety Act 1912
Construction Safety Regulation 1950
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Workers Compensation Regulation 2010
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Ace Semi Trailer Sales Pty Ltd v Zurich Australia Ltd [2009] NSWCA 381
Collins v Sydney Ports Corporation [2012] NSWSC 115
Corbett v Toll Stevedoring Pty Ltd [2007] NSWSC 749
Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141
Estate of the late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340
Pritchard v Trius Constructions Pty Limited [No 2] [2011] NSWSC 1114
Roads and Traffic Authority v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73
Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079
Category: Consequential orders
Parties: Philip Collins (Plaintiff)
Sydney Ports Corporation (First Defendant)
Australian Winch & Haulage Company Pty Ltd (Second Defendant)
Representation: P R Stockley (Plaintiff)
A B Parker (First Defendant)
M T McCulloch SC with S Maybury (Second Defendant)
Higgins & Higgins (Plaintiff)
Hicksons (First Defendant)
HWL Ebsworth (Second Defendant)

File Number(s): 2009/296483

Judgment

I delivered judgment in the principal proceedings on 24 February 2012: see Collins v Sydney Ports Corporation [2012] NSWSC 115. The parties subsequently identified a series of additional and outstanding matters that arose for consideration and determination following the publication of my reasons. Those matters are as follows:

(a) Whether Mr Collins is prevented from recovering the agreed amount of $100,000 for the cost of funds management from Sydney Ports because of a pleading issue relating to Mr Collins' pre-filing statement.

(b) Whether irrespective of the outcome of issue (a), Australian Winch and Haulage is entitled to recover a proportion of the funds management cost, agreed between Mr Collins and Australian Winch and Haulage to be the sum of $140,000, from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 1316
Decision Date: 31 October 2012

CaseChat Overview and Summary

The dispute in Collins v Sydney Ports Corporation arose from Mr Collins' claim for compensation against the Sydney Ports Corporation for injuries sustained during his employment. The case was heard in the Supreme Court of New South Wales. The central issues the court needed to resolve included the entitlement to the cost of funds management, the contribution between joint tortfeasors with respect to the cost of funds management, the entitlement to pre-judgment interest, and the entitlement to interest on past payments of weekly compensation. Additionally, the court had to determine the appropriate construction of certain statutory provisions and the allocation of costs between the parties.

In addressing these issues, the court considered whether Mr Collins' pre-filing statement was materially different from the statement of claim he relied upon in the proceedings, particularly regarding the omission of a claim for the cost of funds management. The court also examined whether Mr Collins should be granted leave to amend his statement of claim to include such a claim. The court found that Mr Collins had available to him certain medical reports and a Workers Compensation Commission Medical Assessment Certificate at the time he served his pre-filing statement, which could have included the claim for the cost of funds management. However, the court concluded that the omission of this claim did not render the statement of claim materially different from the pre-filing statement as it was apparent from the medical material ultimately served that such a claim was to be made.

The court further deliberated on the statutory provisions concerning the cost of funds management, finding that Mr Collins was not entitled to such costs under the relevant sections of the Workplace Injury Management and Workers Compensation Act 1998. Regarding pre-judgment interest, the court determined that Mr Collins was entitled to such interest from the date of the accident until the date of judgment. Lastly, the court addressed the issue of interest on past payments of weekly compensation, holding that Mr Collins was entitled to interest from the date of each payment until the date of judgment.

In summary, the court's final orders were that Mr Collins was not entitled to the cost of funds management, was entitled to pre-judgment interest from the date of the accident until the date of judgment, and was entitled to interest on past payments of weekly compensation from the date of each payment until the date of judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I delivered judgment in the principal proceedings on 24 February 2012: see Collins v Sydney Ports Corporation [2012] NSWSC 115. The parties subsequently identified a series of additional and outstanding matters that arose for consideration and determination following the publication of my reasons. Those matters are as follows: This judgment deals with those matters. Mr Collins claims the cost of funds management. Sydney Ports contends, however, that Mr Collins' claim for that cost is defeated by a combination of provisions in the Workplace Injury Management and Workers Compensation Act 1998. Section 315(1) of that Act is in the following terms: Section 318 of that Act is relevantly for present purposes as follows: The point of difference between Mr Collins and Sydney Ports is whether or not Mr Collins' pre-filing statement was materially different from the statement of claim upon which he relied in these proceedings, in that the pre-filing statement contained no claim for the cost of funds management. If it was materially different, the further question arises as to whether Mr Collins should in the circumstances be granted leave to file an amended statement of claim that includes a claim for such cost. Neither Mr Collins' pre-filing statements nor any proposed statement of claim annexed to any such statements made in terms any claim for the cost of funds management. He conceded as much. However Mr Collins argued that the medical material concerned with this issue was not reasonably available to him when the pre-filing statement was served. He also contended that it was or should have been apparent from the medical material ultimately served by him that such a claim was to be made and that the case was in any event conducted on that basis. The fundamental question that arises is whether or not the statement of claim upon which Mr Collins relies "is materially different from the proposed statement of claim that formed part of the pre-filing statement served by" him. Sydney Ports contends, and it does not appear to be controversial, that Mr Collins filed an amended pre-filing statement that included the report from Cutcher and Neale, and that neither document particularised a claim for the cost of funds management. A later amended statement of claim also contained no reference to such a claim. Sydney Ports submitted that at the time of filing the pre-filing statement Mr Collins had available to him the a report of Sharon Flanagan, a clinical psychologist and neuropsychologist, dated 27 December 2001 and a Workers Compensation Commission Medical Assessment Certificate that dealt with his intellectual impairments and the difficulties for him that flowed from these impairments as at 23 July 2006. The report referred to a number of cognitive difficulties from which Mr Collins suffered and the certificate referred to symptoms of memory and concentration problems and some difficulties with planning and judgment. The certificate also contained the following opinion:

Medium Neutral Citation:	Collins v Sydney Ports Corporation [2012] NSWSC 1316
Hearing dates:	21 August 2012
Decision date:	31 October 2012
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Parties to bring in short minutes of the orders that they agree give effect to my conclusions, or in the absence of agreement, the orders for which they respectively contend.
Catchwords:	WORKERS' COMPENSATION - assessment and amount of compensation - entitlement to cost of funds management - contribution between joint tortfeasors with respect to cost of funds management - entitlement to pre-judgment interest - entitlement to interest on past payments of weekly compensation PROCEDURE - costs - costs as between plaintiff and first defendant - general rule costs follow the event - costs as between plaintiff and second defendant - costs as between co-defendants - costs apportioned to reflect respective liabilities of first and second defendants STATUTES - by-laws and regulations - construction - breach of statutory duty
Legislation Cited:	Civil Procedure Act 2005 Construction Safety Act 1912 Construction Safety Regulation 1950 Law Reform (Miscellaneous Provisions) Act 1946 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workers Compensation Regulation 2010 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Ace Semi Trailer Sales Pty Ltd v Zurich Australia Ltd [2009] NSWCA 381 Collins v Sydney Ports Corporation [2012] NSWSC 115 Corbett v Toll Stevedoring Pty Ltd [2007] NSWSC 749 Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 Estate of the late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340 Pritchard v Trius Constructions Pty Limited [No 2] [2011] NSWSC 1114 Roads and Traffic Authority v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609 Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73 Ziliotto v Dr Hakim (No. 2) [2012] NSWSC 1079
Category:	Consequential orders
Parties:	Philip Collins (Plaintiff) Sydney Ports Corporation (First Defendant) Australian Winch & Haulage Company Pty Ltd (Second Defendant)
Representation:	P R Stockley (Plaintiff) A B Parker (First Defendant) M T McCulloch SC with S Maybury (Second Defendant) Higgins & Higgins (Plaintiff) Hicksons (First Defendant) HWL Ebsworth (Second Defendant)
File Number(s):	2009/296483