Fairmont Aged Care Centre v McFarlane
[2008] NSWWCCPD 30
•10 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:Fairmont Aged Care Centre v McFarlane [2008] NSWWCCPD 30
APPLICANT DEFENDANT: Fairmont Aged Care Centre
RESPONDENT CLAIMANT: Ilaisane McFarlane
FILE NUMBER: WCC374-08
DATE OF DECISION: 10 March 2008
SUBJECT MATTER OF DECISION: Application to strike out pre-filing statement; section 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: President Greg Keating DCJ
HEARING:On the papers
REPRESENTATION: Applicant Defendant: Rankin Nathan Lawyers
Respondent Claimant: David Landa Stewart Lawyers
ORDERS MADE ON APPLICATION: Pursuant to section 151DA of the Workers Compensation Act 1987 the Defendant’s application that the Claimant’s pre-filing Statement be struck out is refused.
No order as to the costs of this application.
BACKGROUND TO THE APPLICATION
Ms Ilaisane McFarlane (‘the Claimant’) alleges that on 19 November 2002 during the course of her employment with Fairmont Aged Care Centre (‘the Defendant’), she sustained injuries to her back and lower limbs when she was required to push a bed with a patient on it. She alleges the locking mechanism on the wheels of the bed was faulty as a result of which she was required to push the bed with the wheels in the locked position.
The Claimant sustained serious injuries to her lower back requiring a spinal fusion.
The parties are in agreement that the Claimant’s whole person impairment is at least 15%, as required by section 151H of the Workers Compensation Act 1987 (‘the 1987 Act’).
By letter dated the 18 November 2005 the Claimant served a pre-filing statement pursuant to section 315 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The letter of 18 November 2005 enclosing the pre-filing statement was served by courier on Messrs David Landa Stewart, solicitors for the Defendant. There is no evidence that a copy of the pre-filing statement was served on the Defendant, although it is apparent from the Defendant’s submissions that the pre-filing statement has come to its attention. No issue is taken on this application regarding service
A pre-filing defence in response to the pre-filing statement was served on the Claimant’s solicitors on 14 December 2005.
No Application for Mediation to Resolve Work Injury Damages Claim has been filed with the Commission.
On 20 December 2007 the Defendant made application to the Commission to strike out the Claimant’s pre-filing statement.
A letter from the Claimant’s solicitor confirming service of the Application on the Defendant’s solicitors was received by the Commission on 26 February 2008.
Upon receipt of the Application the Commission issued a direction on 29 January 2008 in the following terms:
“1.The Applicant serve a copy of the Application to Strike Out a Pre-Filing Statement and a copy of this Direction, on the Respondent by 5 February 2008.
2. The Respondent file with the Commission and serve on the Applicant any submissions in reply to the Application to Strike Out Pre-Filing Statement, and any submissions as to whether the Application may be determined on the papers by 19 February 2008.
3. The Applicant file with the Commission and serve on the Respondent any submissions in response to the Respondent’s reply above, and any submissions as to whether the Application may be determined on the papers, by 26 February 2008.”
The Commission received no further submissions from either party after the expiration of the time for compliance with the directions referred to in the preceding paragraph. At my request a Commission officer contacted the parties’ solicitors on 25 February 2008. The Defendant’s solicitors confirmed that they had served the Application and the Direction on the solicitors for the Claimant. The Claimant’s solicitors declined to confirm or deny that they had been served with the Application. The Claimant’s solicitors further declined to indicate whether submissions would be lodged on his client’s behalf in response to the Application, however he indicated that he had been in contact with his client that same day.
A further direction was issued on 26 February 2008 in the following terms:
“1. On or before 5 pm 29 February 2008 the Claimant is to file and serve any submissions in reply to the Defendant’s application including submissions on whether the application can be determined on the papers.
2. On or before 5 pm 7 March 2008 the Defendant is to:
a. file complete copies of the pre-filing statement including all annexures and the pre-filing Defence including all annexures, and
b. file and serve any submissions in reply to the Claimant’s submissions and submissions on whether the application can be determined on the papers.
3.No further extensions of time will be granted.”
APPLICATION
The Defendant seeks an order striking out the pre-filing statement on the basis that the Claimant has not proceeded to file an Application for Mediation to Resolve Work Injury Damages Claim following the service of the Defendant’s pre-filing defence on 14 December 2005.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Direction Numbers 1, the documents that are before me, and the submissions by the parties that the matter can proceed to be determined ‘on the papers’ and on the basis of those documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Claimant’s submissions
The Claimant’s current solicitors received instructions on or about 2 November 2005. She had previously retained two other lawyers. The former solicitors’ files were received by the Claimant’s current solicitors on or about 11 November 2005. A window of opportunity existed until 19 November 2005 for the filing of a pre-filing statement.
On 18 November 2005 the pre-filing statement, the subject of this application was served by the Claimant.
Following the filing of the statement and the receipt of the pre-filing defence (served 14 December 2005) a conference was held with the Claimant concerning her workers compensation and common law rights. Whilst instructions were sought in relation to pursuing the common law claim or continuing in the statutory system, “those instructions were not forthcoming from the Claimant”.
A medico-legal assessment was arranged for the Claimant by the Defendant with Dr Silver on 15 June 2006. The Claimant’s solicitor arranged a medico-legal assessment with Dr Fearnside for 12 September 2006. Throughout this period the Claimant’s treatment and rehabilitation were continuing, which precluded the Claimant’s solicitors from participating in an informal settlement conference at the invitation of the Defendant’s solicitors.
On 1 August 2006 a claim was made for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act based on a report of Dr Conrad dated 18 July 2005 (the report being obtained by the Claimant’s former solicitors).
The Defendant subsequently made a counter offer on a without prejudice basis.
A conference was arranged between the Claimant, her solicitors and Counsel in August 2006 to discuss the claim and in particular the pursuit of the common law damages claim.
Further investigations were undertaken by the Claimant’s solicitors with the Claimant’s treating specialist and further medical reports and hospital notes were requested at that time.
On 12 September 2006 a report was received from Dr Fearnside “that provided a significantly increased assessment of our client’s permanent impairment and condition generally”.
In November 2006, a new solicitor was appointed to the carriage of the matter, the former solicitor having resigned. Throughout November there were further discussions between the parties in relation to the provision of information required under section 126 of the 1998 Act. A list of compensation payments was provided by the Defendant’s solicitors in late November 2006.
On 7 January 2007 a further conference was held with the Claimant, her solicitors and Counsel to discuss the claim in general and to obtain the Claimant’s instructions in relation to pursuing her common law damages claim. The Claimant’s solicitors submit “those instructions were not obtained in conference”. The Claimant was given further advice in writing but apparently failed to respond until November 2007 when she instructed her solicitors to pursue her common law claim for damages.
The Claimant’s solicitors submit that it is the Claimant’s intention to pursue her common law claim for damages.
Arrangements have been made for an update medical examination to take place with Dr Fearnside and a further report dated 29 January 2008 has now been received.
The further report of Dr Fearnside of 29 January 2008 has been served on the Defendant’s solicitors together with a further claim for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act.
The Claimant’s solicitors submit that they have been unable to pursue the Claimant’s common law damages claim by reason of her delay in providing instructions and due to the continuation of her treatment.
The Claimant’s solicitors submit that they have now been instructed to pursue mediation in the Commission subject to the resolution of the claims under sections 66 and 67.
Defendant’s submissions
The Defendant submits:
“1. …that the Claimant’s Pre Filing Statement should be struck out.
2.Pursuant to Section 151D of the Workers Compensation Act 1987, the limitation period on commencing court proceedings in respect of injury should have expired on 19 November 2005, however, subject to Section 151DA, the time for commencing court proceedings does not run for the purposes of Section 151D whilst the Claimant’s Pre-Filing Statement remains current. The Defendant submits that it has been prejudiced by the failure of the Claimant to move forward with her claim by filing an Application for Mediation and a Statement of Claim.
3.Over five years has now elapsed since the Claimant’s injury and over two years have elapsed since the Pre Filing Statement was served. In John Lacey Earth Moving Pty Limited v Campbell-Willis [2007] NSWWCCPD 197, [Acting] President Gary Byron noted the following:-
·“Given the delay in bring the proceeding, the longer the matter is pending the less reliable will be the testimony, and the longer the matter takes to be finalised the greater risk that the Defendant’s witnesses will be unavailable and time limits exist to avoid prejudice occasioned by the delay in bringing proceedings”.
·“It is in the interests of all parties that the matter be dealt with as expeditiously as the circumstances of the case allows” and whilst the pre-filing statement remains current the Defendant cannot finalise the matter”.
·“A claimant should be ready to proceed at the time of serving the pre-filing statement and section 315 of the 1998 Act requires that evidence upon which the Claimant intends to rely should be served with the pre-filing statement”.
·As noted the President in Pasminco Cockle Creek Smelter v Gardner [2006] NSWWCCPD 108 (‘Gardner’), “It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps”.
4.Up until the time that the Application to Strike Out the Pre-Filing Statement was served, the Claimant took no active steps to progress the matter, such as filing an Application for Mediation. As noted above, the pre-litigation phase was effectively complete at the time of filing the Pre Filing Statement. Given the delay since service of the Pre-Filing Statement and the prejudice to the Defendant in terms of the potential effect of the delay in terms of witness testimony and the delay in general, the Defendant submits that the Pre-Filing Statement should be struck out.”
DISCUSSION AND FINDINGS
Section 151D (2) of the 1987 Act provides that:
“ A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”
Section 151DA of the 1987 Act suspends time for the purposes of section 151D in a number of specific circumstances, one of which is “while a pre-filing statement is served in accordance with section 315 of the 1998 Act and remains current.”
Under section 315(1) of the 1998 Act a Claimant seeking work injury damages must serve a pre-filing statement on the Defendant before he/she can “commence court proceedings for the recovery of work injury damages…”
In this case the Defendant submits that the Claimant’s pre-filing statement was served on 18 November 2005, the day before the three year limitation period under section 151D expired. It, therefore, stopped time running on and from 18 November 2005.
The Defendant submits that it served its defence to the pre-filing statement on 14 December 2005.
There is no evidence to suggest that the Defendant has at any time alleged that service of the Claimant’s Pre-Filing Statement failed to comply with section 315.
I therefore accept that the pre-filing statement was validly served and remains current until it is struck out (by the President), or withdrawn by the Claimant (section 151DA(2)).
Section 151DA(2) provides:
“(2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (“the defendant”) on whom it was served or it is withdrawn by the person who served it, whichever happens first.”
As observed by Acting President Gary Byron in John Lacey Earth Moving Pty Limited v Campbell-Willis [2007] NSWWCCPD 197:
“The legislative intention of these provisions is to provide time, both to facilitate the resolution of the claim prior to commencing court proceedings, through the early exchange of information and evidence, and to enable the participation of the parties in mediation.
As noted by the President in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 at [15] and as relied on by the Defendant in this application:
‘It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.’
Whilst section 151DA (2) provides that the pre-filing statement remains current until it is struck out by the President on application of the Defendant, or is withdrawn by the Claimant, “whichever happens first”, the Act is silent as to what grounds will support a strike out application.”
“Section 151DA (3) allows for the application to be made after 6 months have elapsed from the service of a pre-filing defence.”
The pre-filing defence was served on the Claimant’s solicitor on 14 December 2005. The Application before me was initiated by letter dated 20 December 2007, almost two years after the pre-filing defence was filed thus the requirements of section 151DA(3) have been met.
The Defendant submits that it is prejudiced by the failure of the Claimant to move forward with her claim by filing an Application for Mediation and a Statement of Claim. The Defendant has not articulated in its submissions how or why such prejudice arises. I do not accept that the Defendant is prejudiced by the delay. This is not a matter where delay on the part of the Claimant has allowed the investigative trail to go cold. It is not a matter where the Defendant is unable to pursue inquiries which it may have done had the matter been pursued with more vigour. The Claimant’s injuries arise out of a frank incident which was promptly reported to the Defendant. The Defendant’s pre-filing defence includes a plethora of investigations and medical reports at regular intervals throughout the period between the Claimant’s accident and the current time.
The Claimant is 41 years of age. She is a widower and has been totally incapacitated since sustaining the injuries.
The Claimant suffered an L4/5 disc prolapse and underwent an L4/5 discectomy-neurolysis and L4/S1 interbody fusion on 14 May 2004. Her condition deteriorated after the surgery. As of September 2005 the Claimant’s treating specialist Dr Geoff Rosenberg was contemplating further surgery in an attempt to strengthen the fusion. The Claimant had been complaining post operatively of increased lower back pain, bilateral lower limb pain and weakness, and urinary incontinence. She is diagnosed as suffering from arachnoyditis and cauda equina syndrome.
Mr Dale Larson, physiotherapist, in a report dated 4 July 2005 noted that Ms McFarlane could only walk short distances using boots with a foot drop and Canadian crutches. For a large part of the time at her home she was wheelchair bound. She was unable to use a motorcar and required a driver and was having food delivered to her home.
I am conscious, as submitted by the Defendant, that over five years have elapsed since the Claimant’s injury and over two years have elapsed since the pre-filing statement was served. To the extent that the Defendant quotes Acting President Byron in Lacey, with the exception of the reference to Gardner, the Defendant has with respect misquoted the Acting President. The extract that it has relied upon is not in fact a statement of principle enunciated by the Acting President, but is merely a recitation of submissions put to him in argument.
Acting President Byron in Lacey articulated two matters relevant to the exercise of discretion under section 151DA(2):
·a pre-filing statement is not intended to extend time indefinitely, and
·limitation periods exist to protect parties from potential prejudice caused by the passage of time between the date of injury and the commencement of court proceedings.
I agree that both of these matters are relevant matters in the exercise of the discretion. The matter before me is quite different from the facts confronting Acting President Byron in Lacey. In that matter no explanation for the delay had been provided to the Commission for progressing the matter since the service of the pre-filing statement. Although the Claimant had been given every opportunity to be heard on the application the Claimant failed to make any submissions opposing the Defendant’s strike out application. This matter is quite different. This matter involves a very seriously injury worker who has undergone extensive spinal surgery and has regrettably suffered from a poor outcome. An explanation for the delay has been offered and, although it is not entirely satisfactory, there being a failure to explain adequately large portions of the delay, it is clear that the Claimant is now actively pursuing her entitlement to claim damages in respect of the injuries she sustained. I am also mindful that the extent of her whole person impairment is still a matter of some controversy. A report was received from Dr Fearnside as recently as 29 January 2008 reassessing the extent of the Claimant’s entitlements pursuant to section 66.
The Defendant submits that the Claimant took no active steps to progress the matter up to the time that the Application to Strike Out the Pre-filing Statement was served. I do not accept that fact as an accurate statement. I note that throughout 2006, certainly in the latter part of 2006, there was a regular stream of communication between the solicitors for both parties. I accept that there appears to have been little activity between December 2006 and December 2007. However, given the circumstances that I have outlined in relation to the nature and extent of the Claimant’s injuries and disabilities and the steps that are now in train to progress the matter I am not persuaded that the pre-filing statement should be struck out.
DECISION
The Defendant’s application that the Claimant’s pre-filing statement be struck out is refused.
COSTS
Whilst this application has been unsuccessful and the Claimant may consider she is entitled to a costs order in her favour, I am of the view such an order is not appropriate.
In considering the circumstances which a departure from the usual orders may be justified McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 said:
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.” (emphasis added)
This is a case where the Defendant’s application may not have been necessary, were it not for the delays on the part of the Claimant in pursuing her common law claim.
Whilst I am satisfied that the Claimant’s conduct is not such as to justify striking out her pre-filing statement, I consider it does justify departing from the usual order as to costs.
There will be no order as to costs of this application.
His Honour Judge Greg Keating
President 10 March 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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