Fletcher v Allianz Australia Workers Compensation (NSW) Limited

[2014] NSWSC 1668

Supreme Court

New South Wales

Medium Neutral Citation:

Fletcher v Allianz Australia Workers Compensation (NSW) Limited [2014] NSWSC 1668

Hearing dates:

20 November 2014

Decision date:

20 November 2014

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1.Statement of Claim struck out.

2.Plaintiff to pay the defendant's costs.

Catchwords:

PRACTICE AND PROCEDURE - striking out statement of claim - failure to reveal a cause of action

Legislation Cited:

Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Category:

Principal judgment

Parties:

Robin Fletcher (Plaintiff)
Allianz Australia Workers Compensation (NSW) Limited (Defendant)

Representation:

Counsel:
P Menary (Defendant)
Solicitors:
Sparke Helmore Lawyers (Defendant)

File Number(s):

2013/328796

Judgment

1. HIS HONOUR: The plaintiff commenced proceedings against the defendant by a statement of claim filed on 31 October 2013. On 27 May 2014, the defendant gave notice of a motion to strike the statement of claim out, and seeking costs. That notice of motion was served by email on 2 June 2014 on the plaintiff.

1. On 3 June 2014, the plaintiff responded by way of email, acknowledging receipt of the notice of motion and asking if the hearing before the registrar (for directions) could occur by way of telephone conference. On the same day, the parties were emailed by the registrar advising that the listing on 5 June had been vacated, and the matter was next before the Court on 20 June 2014. On that date, the parties attended a further directions hearing before Registrar Bradford, the plaintiff by video link.

1. On that occasion, the following orders were made:

(1)   The plaintiff to file and serve an affidavit in response to the notice of motion by 10 October 2014.

(2)   2. Notice of motion to strike out the plaintiff's statement of claim listed on 20 November 2014.

1. The plaintiff has not communicated with the defendant's solicitor since that time, and has not communicated with the Court. Given the indications that the plaintiff is in Brazil, it is perhaps not surprising that he is not present today, but as a precaution, I had his name called outside the Court with no appearance. In the circumstances, it seems to me appropriate to deal with the defendant's notice of motion without further delay.

1. The statement of claim lists a number of injuries commencing with an allegation of breaking his left foot on 6 June 2000, which required it to be in plaster for a month. The circumstances leading to this injury are not stated. When the plaster was removed he went into full-time duties with what he claims was no time for recovery and no suitable job. The plaintiff worked cleaning a mall on his feet for eight hours a day, and suffered months of intense pain, he says. Because of his altered gait, he alleges, in 2001 he suffered a stress factor of his metatarsus and started to feel low back pain. He went to a doctor in 2003 about these problems. He did not identify his employer.

1. The next date mentioned in the statement of claim is 2007 in which the plaintiff says, "while working for TNT, I had a disc bulging", and that, after leaving TNT in 2011, "I was diagnosed with a disc protrusion". He says that since then he had, "been on workers compensation but I haven't got any of my entitlements back to 2000". From this, I infer his allegation is that from 2011 he received workers compensation but had not received any workers compensation in respect of his previous problems. He alleges that his feet pain is worsening, he limps most days. His neck also has got much worse and his, "Knee is still clicking".

1. He said that in 2002 he, "Received a loss of twenty per cent of my feet movements and two per cent above the knee", and his doctors said he should not do any physical work. However, he said that he did, "the most intense physical work". He claims that in 2011, "an Allianz doctor had already given me ten per cent loss of my back". He says that he then went to a law firm about his rights of loss of wages and entitlements of a lump sum, and about a lawsuit I take it against either TNT or Allianz or both. The plaintiff alleges that Allianz still refuses any payment and, "somehow admitted some culpability (as per law) but still refuses to pay me my full entitlements".

1. Doing the best I can to interpret the allegations made and the claim of the plaintiff, he alleges a work injury presumably whilst working for TNT and is claiming sums by way of workers compensation and a lump sum.

1. In its defence, the defendant pleads that the statement of claim does not reveal a cause of action, and alternatively, that the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Workplace Injury Act) gives exclusive jurisdiction to the Workers Compensation Commission to examine, hear and determine all matters arising under that Act and the Workers Compensation Act1987 (NSW). Other defences are that the claim and all allegations have been brought out of time and are statute barred under s 151D of the Workers Compensation Act. Furthermore, notice of the claim was not given in accordance with ss 281 and 282 of the Workplace Injury Act. There is no evidence or allegation that the plaintiff has reached the relevant threshold for a claim for work injury damages, nor has a pre-filing statement been served, so that pursuant to s 315 of the Workplace Injury Act, the plaintiff is prevented from commencing Court proceedings.

1. In the absence of a medical assessment that the plaintiff has suffered fifteen per cent or more of whole person impairment, the plaintiff cannot obtain damages. The plaintiff does not allege that he has satisfied the prerequisites for obtaining damages. It appears on his own chronology that the claim or claims are statute barred, and the statement of claim does not reveal, with sufficient clarity, even accepting that it is prepared by a lay person, what the nature and extent of his claim is, and the basis for liability.

1. For these reasons, it seems to me that the statement of claim should be struck out with costs. The defendant is to provide the plaintiff in due course with a copy of this judgment by email to his last email address.

Decision last updated: 24 November 2014