Lancaster v Patrick Stevedores Holdings Pty Ltd

[2017] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	Lancaster v Patrick Stevedores Holdings Pty Ltd [2017] NSWDC 50
Hearing dates:	1-3, 6 March 2017
Date of orders:	06 March 2017
Decision date:	06 March 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I grant leave to the plaintiff to adduce the evidence proposed to be adduced from Mr McAleer pursuant to s 318(2) of the 1998 Act.
Catchwords:	PRACTICE & PROCEDURE – CLAIM FOR WORK INJURY DAMAGES -- Application under Workplace Injury Management and Workers Compensation Act 1998 s 318(2) – Change in working conditions at plaintiff’s former workplace after his services were terminated by the defendant – Whether evidence of change reasonably available to plaintiff at time of pre-filing statement – Change occurs between delivery of particulars pursuant to s 282 and service of pre-filing statement
Legislation Cited:	Workplace Injury Management and Workers Compensation Act 1998
Category:	Procedural and other rulings
Parties:	Ronan Lonsdale Lancaster (Plaintiff) Patrick Stevedores Holdings Pty Ltd (Defendant)
Representation:	Counsel: Mr I Roberts with Mr P Menary (Plaintiff) Mr S Flett (Defendant)   Solicitors: WG McNally Jones Staff Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2016/56960

Judgment

1. HIS HONOUR: This is an application under s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998.

Background

2. The plaintiff was employed by the defendant in the middle of 2003. He was initially employed as a casual employee and did work at both the Glebe Island container terminal and in Darling Harbour for the defendant. However, the plaintiff, at the time that he was engaged by the defendant, was told that he was to be trained as a straddle crane operator working at a container terminal or container terminals. In January 2004, he underwent training for two weeks in order to become a straddle crane operator. At about the same time, he became a permanent guaranteed employee of the defendant. That meant that he was guaranteed an annual salary of at least $35,000 and that he was entitled to holiday pay, sick pay, long service leave, and superannuation benefits.

3. In 2012 the plaintiff was assigned to be a member of the permanent irregular roster. That was a superior position to being an ordinary PGE employee. When the plaintiff joined the permanent irregular roster he was guaranteed a minimum annual salary of $103,000 plus the other entitlements to which a permanent employee is entitled. One of the benefits of being on the permanent irregular roster was that it placed one on a list to join the permanent regular roster where there were even greater benefits.

4. On 18 July 2012 an announcement was made by the defendant to its employees at Port Botany. The nub of the announcement was that the defendant intended to automate its straddle cranes. Straddle cranes at Port Brisbane had been automated in 2005. The plaintiff went on to give this evidence:

“They told us they were going to automate, and then they told us that they would release a plan on what they were going to do with the labour force. I don't remember the exact date that we got a plan with what was going to happen with the labour force, but they said there would be new roles created by the automation. There would also be redundancies offered, and there would also be the option to apply to work interstate if they didn't have roles for you in Sydney if you didn't want a redundancy …”

Antecedent to that announcement the plaintiff had heard "on the grapevine" that the automation of straddle cranes was going to occur. At that time, the plaintiff also said that he was not happy being on the irregular roster and he was considering going off to join the mining industry where it is common knowledge that wage rates were much superior to those offered to stevedores.

5. The plaintiff did a preliminary course in Wollongong, a mine safety course for coalmining, and in the middle of 2012 commenced studies at the University of New South Wales which at the end of 2012 caused him to be awarded a Graduate Certificate in Mining Engineering and, on 31 July 2013, caused him to be awarded the degree of Master of Mining Engineering specialising in Mine Management.

6. However, in the meantime, the plaintiff, who had been complaining about back problems since 2004, had an increase in his low back pain in an event which has been described as occurring on 25 January 2013 and is confirmed by the defendant's first aid records. Thereafter there was an acceleration of the plaintiff's complaints about his low back causing him to consult a general practitioner on 8 March 2013. The plaintiff had to stop working on 5 May 2013 because by that stage he had constant low back pain. He was seen shortly thereafter by Dr Timothy Steel, a neurosurgeon, and on 22 November 2013 underwent an excision of the lumbosacral disc and a replacement of that disc with a prosthesis. Such surgery needed to be undertaken by way of the anterior approach.

7. After the surgery to his back the plaintiff asked for suitable employment. On 14 February 2014 the plaintiff sent to his employer a certificate of Dr Steel which certified he was fit for alternative work commencing on 24 February 2014. Exhibit H, a trail of emails, refers to that application. However, the application was refused. The plaintiff's services were terminated by the defendant on 16 March 2014.

8. Antecedent to the flare-up of his back pain on 25 January 2013 the plaintiff had formed the intention of leaving the stevedoring industry and entering the mining industry. His plan was to accept a redundancy payment from the defendant when the automation of the straddle cranes occurred. The plaintiff said that he lodged in 2012 an expression of interest in taking a redundancy when the redundancies were to be offered. However, when the plaintiff stopped working because of his back complaint, he told me that he withdrew that expression of interest but when his services were dispensed with by the defendant after the defendant failed to provide him with suitable employment, he was again interested in taking a redundancy package and that was offered to him and accepted.

The issue

9. I shall refer hereafter to the Workplace Injury Management and Workers Compensation Act 1998 as the 1998 Act. Section 281(1) requires an employer on whom a claim for work injury damages is made to determine that claim by accepting liability and making a reasonable offer of settlement or disputing liability. A claim for work injury damages must be determined within 2 months by the employer after the claimant has provided to the insurer "all relevant particulars" about the claim. What are “the relevant particulars” are provided for in s 282 of the Act. Under s 282(1)(d) a putative plaintiff making a claim for work injury damages must provide details of the economic losses that are being claimed as damages as well as material relating to liability.

10. The plaintiff provided particulars required by s 282 on 15 December 2014. Amongst the particulars delivered at that time is this statement:

“The claimant alleges that but for his injury, by late 2013 he would have been allocated to the permanent regular roster, earning a sum of $1,756.00 per week net.”

On 27 March 2013 the defendant had posted a notice indicating that the plaintiff was going to be assigned to the gang 5 on the permanent regular roster so that, sometime thereafter, he would certainly, uninjured, have joined the permanent regular roster.

11. When automation occurred has not been exactly ascertained. The best the evidence discloses is that it occurred at Easter 2015. Easter day in 2015 was 5 April. One can therefore accept that sometime in April 2015 the defendant's straddle cranes were automated and that the alternatives for the workforce then became available, that is the offer of redundancy, the offer of alternative work and, the offer of re-deployment at another port in the Commonwealth of Australia.

12. On 25 August 2015 about four months after the automation of the defendant's straddle cranes, the plaintiff served a pre-filing statement together with a schedule of evidence to be relied upon by him. The schedule of evidence to be relied upon by the plaintiff is exhibit VD1. The fourth document itemised on that schedule is, "Particulars of work injury damages claim dated 15 December 2014." That is the document to which I have earlier referred and at which can be described as a s 282 notice. The defendant served a pre-filing defence on 22 September 2015 which annexed to it statements of two employees of the defendant who commented upon the automation of the defendant's straddle cranes at Easter 2015.

13. These proceedings were commenced by a statement of claim filed on 22 February 2016. Filed at the same time as the statement of claim was a statement of particulars in accordance with the rules. Under heading, "Particulars of economic loss," the first paragraph re iterates the allegation that by about late 2013 the plaintiff would have been allocated to the permanent regular roster and would have earned thereafter $1,756 per week net. Paragraph 2, that makes an allegation as to the earnings of comparable employees on the "permanent regular roster." Under the heading, "Future wage loss," the first statement is this:

“The plaintiff makes a claim for damages for future economic loss, based on loss of earnings in the mining industry, particulars of which are as follows:”

After that claim is more fully particularised, the plaintiff alleges in the alternative a claim for future economic loss based on, "Loss of earnings of a Stevedore, in the sum of $1,888 per week to age 67 years.”

14. One can see that the allegations of future economic loss made in the particulars filed with the statement of claim exceed the particulars delivered under s 282 and the particulars referred to in the documents accompanying the pre-filing statement. However, that is not the issue before me. The parties have agreed the plaintiff has particularised the claim for future economic loss based on earnings in the mining industry.

The application

15. What is currently before me is an application for leave to adduce evidence of what happened to those employees of the defendant who stayed in the defendant's employment up until the time of automation and what has subsequently happened to him. The plaintiff wishes to call Mr Paul McAleer to give evidence that 55 out of 63 employees of the defendant who were on the permanent regular roster or permanent irregular roster were kept on by the defendant as, "supplementary", casual employees and that, last week, those supplementary casual employees were provided with permanent employment. The plaintiff wishes to allege, in the alternative to his allegation that but for injury he would now be earning in the mining industry, that now but for injury he may have stayed on the docks working as a stevedore becoming a supplementary employee when the automation occurred and, last week, if he stayed with the defendant he would have again become a permanent employee.

16. Section 318(1)(d) of the 1998 Act provides that:

“a party to the proceedings is not entitled to have had any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under the 1998 Act except with the leave of the Court.”

Subsection (2) is in the following terms:

“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.”

The statutory scheme might work well if, after a worker’s injury, there were no change in any material circumstance. However conditions in the workforce can be dynamic, things can change from time to time, and things can change in particular in an industry from which a plaintiff has been excluded by his services having been terminated.

17. The plaintiff complied with the requirements of s 282. The plaintiff sought to comply with the provisions relating to the pre-filing statement by annexing to it the s 282 notice. However in the meantime that is, between the s 282 notice and the pre-filing statement, automation occurred and there were changes occurring at the plaintiff's former workplace. He was no longer an employee of the defendant. He had no direct knowledge of what the defendant was doing and, must rely on hearsay or evidence that could be gleaned by his solicitors to ascertain what was happening to his former work mates. Clearly, the situation is quite dynamic in that things occurred last week and this hearing started last Wednesday.

18. The defendant can hardly be prejudiced by a failure of the plaintiff to notify the defendant earlier that he wished to call this evidence because the defendant is in the best position to know what is actually occurring amongst its employees at Port Botany. The defendant makes decisions and enforces them. It is up to the defendant to decide to whom to offer redundancies, to whom to offer alternative work and to whom to offer work in other ports in the Commonwealth of Australia. It is also up to the defendant to decide whether somebody re-engaged as a casual employee, is readmitted to the permanent workforce. There is no suggestion of any prejudice. The plaintiff clearly could not have given particulars that persons re-employed as supplementary employees by the defendant after the automation at Easter 2015 became permanent employees last week.

19. I am persuaded that it would be substantially prejudicial to the plaintiff not to allow him to adduce the evidence, evidence to support his alternative claim for future and, indeed, past economic loss. The question, really, is whether the material concerned was “not reasonably available to the party” when the pre-filing statement was served. The plaintiff’s services were terminated on 16 March 2014. He was not to know when automation was to occur, or what was to happen to his fellow employees in April 2015. He relied upon particulars supplied by his solicitors in December 2014, reiterating them in his pre-filing statement of 25 August 2015, although by then, the particulars were four months out of date.

20. However, the defendant was happy to meet the alternative claim the plaintiff made novelly with the filing of the statement of particulars on 22 February 2016 that, but for injury, he would have joined the mining industry and be earning a lot more than he would have earned if he had stayed working as a stevedore. However, this consideration goes only to the question of prejudice.

21. Where a worker’s services have been terminated, a worker cannot know of his own knowledge what happens at his former workplace. There is no evidence that the plaintiff or his solicitors knew that the automation actually occurred at Easter 2015 or that the defendant rehired a number of former permanent employees as casual supplementary employees about that time, as at 25 August 2015, some four to five months later. The fact that this application is made bespeaks that, and the defendant adduced no evidence to the contrary. I am persuaded, therefore, that the material was not reasonably available to the plaintiff at the time that the pre-filing statement was served on 25 August 2015. I, therefore, grant leave to the plaintiff to adduce the evidence proposed to be adduced from Mr McAleer pursuant to s 318(2) of the 1998 Act.

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Decision last updated: 20 March 2017