Namoi Cotton Co-Operative Ltd v Davis - [2016] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	Namoi Cotton Co-Operative Ltd v Davis [2016] NSWWCCPD 61
APPLICANT DEFENDANT:	Namoi Cotton Co-Operative Ltd
RESPONDENT CLAIMANT:	Caren Davis
FILE NUMBER:	3687/16
DATE OF DECISION:	13 December 2016
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Hall & Wilcox
Respondent Claimant:	McCabe Partners Lawyers
ORDERS MADE ON APPLICATION:	1. The application to strike out the pre-filing statement is dismissed. 2. The applicant/defendant is to pay Ms Davis’ costs of this application.

INTRODUCTION

This matter concerns an application filed by the applicant defendant employer, Namoi Cotton Co-Operative Ltd, seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant worker’s pre-filing statement be struck out. For the following reasons the application is unsuccessful.

BACKGROUND

Ms Caren Davis, the claimant, was employed by Namoi Cotton Co-Operative Ltd, the defendant, as a seasonal worker. Her duties included cotton picking, cleaning and working as a rover on the presser. This required prolonged bending and lifting.
In April 2003, Ms Davis suffered an accepted injury to her back. Ms Davis continued to work with the defendant on light duties until 2007, when she could no longer work due to ongoing back and lower limb pain. Ms Davis was employed as a part-time bartender from 2007.
Ms Davis attended on Dr Drew Dixon, consultant orthopaedic surgeon, at the request of her solicitors. In a report dated 6 August 2008, Dr Dixon diagnosed Ms Davis with “lumbo-sacral disc protrusion with left sciatica with compressive features with an S1 radiculopathy.” In a supplementary report dated 7 August 2008, Dr Dixon assessed Ms Davis with 12 per cent whole person impairment in respect of her lower back.
On 21 July 2009, Ms Davis filed an Application to Resolve a Dispute seeking weekly benefits, medical expenses, and lump sum compensation in respect of the April 2003 injury. On 9 December 2009, the Commission issued a Certificate of Determination in which it ordered the payment of weekly payments of compensation from 19 May 2007 to date and continuing, together with reasonably necessary medical expenses (5712/09).
With respect to the disputed lump sum compensation claim, the Commission referred Ms Davis to Dr Thomas Rosenthal, Approved Medical Specialist, for assessment of her whole person impairment. On 15 January 2010, Dr Rosenthal issued a Medical Assessment Certificate, assessing Ms Davis to have a 12 per cent whole person impairment in reference to the injury to her back. On 24 February 2010, the Commission issued a Certificate of Determination – Consent Orders which recorded that the defendant pay Ms Davis $17,050 in respect of 12 per cent whole person impairment and $12,500 for pain and suffering.
On 30 August 2011, Ms Davis underwent lumbo-sacral segmental fusion at L5/S1with internal fixation with pedicle screws and rods.
Dr Dixon conducted a further assessment of Ms Davis. In a report of 19 July 2012, Dr Dixon assessed Ms Davis with 29 per cent whole person impairment, comprising of 27 per cent impairment to the back and “impaction on activities of daily living” and an additional 2 per cent in respect of surgical scarring.
In 2013 Ms Davis made a further claim for lump sum compensation pursuant to s 66 of the 1987 Act. That claim was resolved on 15 November 2013, when the Commission issued a Certificate of Determination – Consent Orders (2772/13). The Certificate of Determination recorded that the further claim for lump sum compensation be remitted to the Registrar for referral to an Approved Medical Specialist to assess the whole person impairment in relation to the back and scarring with a deemed date of 18 May 2007. It was also recorded that the defendant’s insurer agreed to pay Ms Davis weekly compensation for a worker with a dependant on a voluntary basis.
On 10 February 2014, Dr Murray Hyde Page, Approved Medical Specialist, issued a Medical Assessment Certificate in which he assessed Ms Davis to have 27 per cent whole person impairment in respect of her back.
On 19 March 2014, the Commission issued a Certificate of Determination which ordered that the defendant pay Ms Davis $34,925 in respect of further permanent impairment resulting from the injury on 18 May 2007. The amount awarded was the difference between the assessment recorded in Dr Hyde Page’s report, dated 10 February 2014, and the 12 per cent permanent impairment already paid.
On 8 April 2014, Ms Davis underwent removal of the posterior segmental fixation of her lumbar spine. On a date which is unclear, that surgery was followed by a third spinal procedure – a L5/S1 disc replacement and anterior lumbar interbody fusion at the L5/S1 level.
On 20 January 2015, Ms Davis served on the defendant a notice of intention to make a claim for work injury damages.
On 7 July 2015, Ms Davis served on the defendant a pre-filing statement.
On 18 August 2015, the defendant served on Ms Davis a pre-filing defence.
On 11 August 2015, Ms Davis filed in the Commission an application for mediation to resolve the work injury damages claim (4618/15).
On 1 September 2015, the defendant lodged a response to the application for mediation.
On 30 September 2015, the parties participated in a mediation before mediator James Kearney. The Certificate of Mediation Outcome, dated 30 September 2015, recorded that the parties failed to resolve the dispute and reach settlement.
On 21 March 2016, Ms Davis’ legal representative, McCabe Partners, wrote to the defendant’s legal representatives stating that Ms Davis “is currently not pursuing her claim for work injury damages and therefore we no longer act.”
On 6 July 2016, the defendant wrote to Ms Davis advising of its intention to file an Application to Strike Out a Pre-Filing Statement. It advised that it had been informed by McCabe Partners that Ms Davis was no longer pursuing her work injury damages claim and that they no longer acted for Ms Davis. A request was made that Ms Davis contact the defendant’s legal representatives within seven days, if she sought to proceed with her work injury damages claim. No response to that letter was received.
On 15 July 2016, the defendant filed an Application to Strike Out a Pre-Filing Statement (the Application).
On 19 July 2016, the Commission issued a direction setting down the timetable for the filing and serving of submissions in respect of the Application. Incorporated in that direction was a requirement that Ms Davis lodge with the Commission and serve on the defendant a Notice of Opposition and supporting documentation on or before 6 September 2016. That order was not complied with.
On 20 September 2016, I convened a telephone conference in which the defendant’s solicitor, Vanessa Porter, and Ms Davis attended. Among other orders, I directed Ms Davis to file a Notice of Opposition by 25 October 2016. That order was also not complied with.
On 25 October 2016, I convened a further telephone conference, in which Ms Porter appeared for the defendant and Mr David McCabe, solicitor, appeared for Ms Davis. At Mr McCabe’s request a further extension of time to file a Notice of Opposition was granted. The Notice of Opposition was received on 22 November 2016.
On 8 December 2016, Ms Davis lodged an Application for Assessment by Approved Medical Specialist (6375/16). She seeks an assessment of whether the degree of permanent impairment is more than 30 per cent.

LEGISLATION

Section 151DA of the 1987 Act provides:
“(1) Time does not run for the purposes of section 151D:
(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281(2)(b) of that Act, or
Note : Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
(a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or
(a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or
(a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or
(b) while a pre-filingstatement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2)     A pre-filingstatement 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.
(3)     The defendant may apply to the President to have the pre-filingstatement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.
(4)     The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.
(5)     A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
(6)     The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”

SUBMISSIONS

The defendant’s submissions

Pursuant to s 151DA(2), Ms Davis’ work injury damages claim will remain in abeyance until the pre-filing statement is struck out or withdrawn.
It is not the intention of the legislation that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely. Claimants must actively pursue the required steps throughout the pre-litigation process. The pre-filing statement should remain current for the purposes of completing those required steps: Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 at [15] (Pasminco).
Factors relevant to an application for an extension of the limitation period are also relevant to Applications to Strike Out a Pre-Filing Statement (Pasminco at [14]). The relevant factors include:
(a)     that it is fair and just that leave be granted: Salido v Nominal Defendant (1993) 32 NSWLR 524;
(b)     the degree of forensic diligence exhibited on behalf of the claimant’s solicitor: Conner v New South Wales (NSWSC, Master Greenwood, No. 13920/96, 28 October 1996, unreported, BC9605243);
(c)     the prejudice to the defendant in losing the benefit of the statutory bar and the difficulty that may be faced by it in investigating a claim because of the effluxion of time: Kijumnuayporn v Reinforced Plastics/Composites Pty Ltd (SCNSW, Master Malpass, 14207/96, 20 December 1996, unreported, BC 9606277), and
(d)     the delay may reduce the chances of a fair trial: Silk v Rossfreight (Sydney) Pty Limited [2000] NSWSC 594.
It is in the context of those principles that the defendant makes the following submissions.

Delay

There has been no adequate explanation for the delay in prosecuting the claim. The defendant submits that Ms Davis has been legally represented since at least November 1997 and it may reasonably be inferred that she has been made aware of the effect of s 151D and the need to proceed without delay with her work injury damages claim.
In Ratnam v Cumarasamy [1965] 1 WLR 8; [1964] 3 All ER 933 at [12] the Court stated:
“… A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of Court must prima facie be obeyed, so must the law of parliament.”

Prejudice

The defendant submits that it is prima facie prejudicial to it to allow the continuation of Ms Davis’ action.
The injury the subject of the claim occurred between 2000 and 18 May 2007, some 9–16 years ago. The defendant accepts that it has conducted an investigation and served evidence in response to Ms Davis’ claim but submits that that is not a complete bar to its assertion of prejudice: Hornby v The Nominal Defendant [2007] NSWCA 222.
The defendant submits that if the application is unsuccessful, it will suffer prejudice in relation to the primary facts. The presumptive prejudice will extend to its ability to discharge the evidentiary onus that rests upon it on issues such as those described in Watts v Rake [1960] HCA 58; 108 CLR 158 and Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638.
The defendant submits that having regard to these submissions, Ms Davis’ pre-filing statement should be struck out pursuant to s 151DA(2) of the 1987 Act.

Ms Davis’ submissions

Ms Davis opposes this application on several bases.
On 16 April 2015, Ms Davis was reassessed by Dr Dixon who issued a further report dated 22 April 2015. Ms Davis’ solicitors submit that the report was not made available to them until 27 September 2016. That was because until then Ms Davis could not afford to pay for the report. Dr Dixon assessed Ms Davis’ whole person impairment at 35 per cent. If Dr Dixon’s assessment is accepted, Ms Davis would qualify as a worker with “highest needs” having suffered an injury that results in a degree of permanent impairment of more than 30 per cent (s 32A of the 1987 Act). If accepted as a worker with highest needs, Ms Davis would be entitled to an enhanced level of statutory entitlements under the legislation.
Ms Davis submits that on 13 October 2016 through her solicitors a claim was made on the defendant for an acknowledgment that she qualifies as a “worker with highest needs”. On the same date it is submitted that Ms Davis’ solicitors filed on her behalf an Application for Assessment by Approved Medical Specialist with respect to her whole person impairment. She submits that if the defendant does not accept her as a worker with highest needs she will be forced to pursue the application for referral to an Approved Medical Specialist to determine whether she meets the criteria for a worker with the highest needs.
Ms Davis submits that it is fundamental to any decision she might make with respect to her work injury damages claim to determine whether she satisfies the criteria of a worker with highest needs. That will inform her decision as to whether or not to pursue her claim for work injury damages.

First submission (statutory bar to the application proceeding)

Section 151DA(4) contains a prohibition on the exercise of the President’s discretion to strike out a pre-filing statement if the degree of permanent impairment is not yet fully ascertainable and the matter is the subject of a referral to an AMS.
If the defendant or its insurer does not concede that Ms Davis is a worker with highest needs as she has indicated she will pursue an application to the Commission seeking an order that she satisfies the criteria of a worker with highest needs in s 32A of the 1987 Act.
Therefore, so Ms Davis submits, whilst she is pursuing a determination as to whether she is a worker with highest needs pursuant to s 32A, I am prohibited as President from exercising my discretion (s 151DA(4)).

Second submission (discretion)

The discretion provided by s 151DA(4) should not be exercised to Ms Davis’ detriment whilst her status as a worker with highest needs remains to be determined.
At the time of the application Ms Davis’ condition had only recently stabilised and she was seeking to proceed to mediation. The Commission has previously held that that is a relevant matter to the exercise of the discretion: Fuelink Pty Limited v Ballestin [2015] NSWWCCPD 30 (Ballestin).
It is submitted that Ms Davis has proceeded with all due diligence in pursuing her statutory entitlements and progressing her claim for work injury damages through to mediation. It would be unjust to strike out the pre-filing statement whilst Ms Davis is actively pursuing her rights and giving due consideration to her future, particularly having regard to the most recent assessment by Dr Dixon, which only came to the notice of Ms Davis’ solicitors as of 27 September 2016.
The Commission has rejected applications in similar circumstances: I and H Investments Pty Ltd t/as Oasis Resort vGolabovska [2016] NSWWCCPD 9 (Golabovska).
Since the mediation it is submitted that Ms Davis’ medical condition has changed markedly with potentially significant effects on her continuing entitlements to compensation. Therefore the discretion under s 151DA should be exercised in her favour.

Third submission (one assessment only of degree of permanent impairment)

If Ms Davis makes an application to the Commission for a further assessment of her whole person impairment, the defendant has submitted that it will oppose such an application on the basis that it is precluded by s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Section 322A provides:
“322A   One assessment only of degree of permanent impairment
(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2)    The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)    Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4)    This section does not affect the operation of section 327 (Appeal against medical assessment).”

It is submitted that s 322A(2) provides the ambit of the restriction on the number of assessments that can be made in respect of permanent impairment of an injured worker with respect to permanent impairment compensation, commutations or a work injury damages claim.
Ms Davis submits her application in respect of an assessment of whether she is a worker with highest needs pursuant to s 32A of the 1987 Act is not a claim within the ambit of the restrictions imposed by s 322A, and therefore she is not precluded from a further assessment of her impairment.
In any event, Ms Davis submits that she has already overcome the s 151H threshold to bring a work injury damages claim and any further assessment would not be necessary for that purpose.

Fourth submission (delays/prejudice)

Ms Davis submits that she could not have commenced a work injury damages claim until the Medical Assessment Certificate of Dr Hyde Page dated 10 February 2014, who assessed Ms Davis to have 27 per cent whole person impairment in respect of her back. This is because until that time Ms Davis had not reached the threshold of 15 per cent whole person impairment to pursue a work injury damages claim. There is no evidence that she has been “careless” in pursuing her rights.
In terms of prejudice, Ms Davis notes that the defendant has conceded that it has fully investigated the circumstances of her alleged injury and served evidence upon which it relies in its pre-filing defence.
The defendant has had the benefit of receiving reports from treating doctors concerning Ms Davis’ condition throughout, in addition to its own medical investigations.
The defendant does not allege any actual prejudice and any presumptive prejudice is overborne by the considerations referred to above. It is submitted that there can be no suggestion that the defendant would not have a fair trial on the issues.

The defendant’s submissions in reply

In response to Ms Davis’ submissions the defendant makes the following further submissions.

Delay

The proposed application to the Commission seeking a declaration as to the status of Ms Davis as a worker with highest needs has not been filed and therefore, it is submitted, it is incorrect to submit that she is actively pursuing her rights. In any event, if such an application is filed, it will be opposed on the basis that such an application is not available to Ms Davis by reason of the provisions of s 322A of the 1998 Act.

Section 322A

The defendant submits that Ms Davis’ analysis of s 322A(2) is incorrect. It submits that only one medical assessment can be made and Ms Davis has already had an assessment of her impairment.
It is submitted:
“The use of the word any is to be read as encompassing all situations, and the further use of the word whether, as relied on by [Ms Davis], is simply to add emphasis to certain types of claims and is not intended to be a complete and final list of all claim types to which the section applies. This is confirmed in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13.” (emphasis in the original)
It is further submitted that because Ms Davis cannot pursue a further application for her assessment of permanent impairment by an AMS and has not taken any steps to progress her work injury damages claim since the mediation on 30 September 2015 and that she has previously indicated through her solicitors that she did not intend to pursue her work injury damages claim, the pre-filing statement should be struck out.

Other matters

The defendant disputes that the decisions in Ballestin and Golabovska provide any support for Ms Davis’ position as those decisions are not analogous to the current proceedings. In Ballestin, unlike the present case, the worker satisfied the Commission that she was ready to proceed to mediation. The defendant submits that a pre-filing statement should not be permitted to stand indefinitely whilst the claimant considers whether or not he or she will proceed with a work injury damages claim or elect to forego such a claim in favour of statutory benefits.
In Golabovska the parties had been actively engaged in preparing the matter for hearing and the plaintiff was taking steps to respond to evidence which had only recently been served by the defendant. For that reason it is submitted that the decision in Golabovska can be distinguished from the facts in the instant mater.

CONSIDERATION

At the time of lodgement of the defendant’s submissions in reply it was correct to submit that no application had been filed in the Commission seeking a further assessment under Pt 7 of Ch 7 of the 1998 Act of the degree of Ms Davis’ permanent impairment. Ms Davis’ submission that such an application was lodged with the Commission on 13 October was incorrect. However, as I have indicated, an Application for Assessment by Approved Medical Specialist was filed on 8 December 2016 seeking an assessment of whether Ms Davis’ permanent impairment is more than 30 per cent.
The defendant has made it abundantly clear during the course of the telephone conference on 25 October 2016 and in its submissions that such an application will be opposed. In other words, the parties are in dispute with respect to the degree of Ms Davis’ permanent impairment. For the purpose of Div 4 of the 1987 Act, which is concerned with compensation for non-economic loss, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 of the 1987 Act and Pt 7 of Ch 7 of the 1998 Act. Therefore, the dispute must be referred to an Approved Medical Specialist for assessment of Ms Davis’ impairment.
In these circumstances, I accept Ms Davis’ submission that, I am precluded by reason of s 151DA(4) from striking out the pre-filing statement whilst the degree of permanent impairment arising from her accepted injury is not fully ascertainable and is subject to an application under Pt 7 Ch 7 of the 1998 Act.
If the conclusion I have reached is incorrect or not the preferred construction I would decline to strike out the pre-filing statement, for the following reasons.
The Workers Compensation Amendment Act 2015 (the 2015 amending Act) introduced a new suite of benefits available to workers under the workers compensation legislation. Significantly, the 2015 amending Act introduced a category of benefits available to “workers with highest needs”. A worker with highest needs is a worker whose degree of whole person impairment has been assessed at more than 30 per cent (s 32A of the 1987 Act). The amendments commenced operation on 4 December 2015.
The benefits available to workers with highest needs are significant. Irrespective of the worker’s pre-accident average weekly earnings, a worker with highest needs is entitled to a minimum weekly payment of $796.00 per week, from 1 October 2016 (s 38A of the 1987 Act).The sum payable is varied twice per year (s 82BA of the 1987 Act). Unlike other workers who are subject to a statutory cap in terms of payment of hospital and medical expenses, workers who satisfy the definition of a “worker with highest needs” are entitled to unlimited reimbursement for their hospital and medical expenses.
Ms Davis was re-assessed by Dr Dixon in April 2015. At that time Dr Dixon assessed Ms Davis’ whole person impairment at 35 per cent. Ms Davis was unaware of the outcome of the assessment until 27 September 2016 when the report was made available to her for the first time. Ms Davis submits that, and I accept, until then she did not have the funds to pay for the report and I infer that for that reason it was not released to her.
Ms Davis submits, and I accept, that she first became aware that she may be entitled to the benefits available to a “worker with highest needs” upon receipt of advice from her solicitor Mr McCabe in October 2016. I note that from at least March 2016 to October 2016, Ms Davis was not legally represented because she could not afford legal representation.
On 13 October 2016, Ms Davis, through her solicitor, made a claim on the defendant for an acknowledgement that she is a “worker with highest needs” in light of the most recent assessment of her permanent impairment. The defendant has not accepted that Ms Davis is entitled to the benefits as a worker with highest needs. Indeed, the defendant has indicated it will resist any application made by Ms Davis for a further assessment to clarify the extent of her incapacity.
I accept that clarification of Ms Davis’ entitlements to statutory benefits is an important element of the decision making process in determining whether or not to further pursue her work injury damages. The changes to the legislation affecting Ms Davis’ statutory entitlements came into operation only months after the mediation took place.
Ms Davis had not had the benefit of legal advice on the effect the changes introduced by the 2015 amending Act until she re-established contact with her solicitor in October 2016.
In the exercise of my discretion under s 151DA I consider it reasonable that Ms Davis have an opportunity to clarify her entitlement to statutory benefits under the legislation. It would be premature in my view to strike out her pre-filing statement while those matters remain uncertain.
It is open to the defendant based on the report of Dr Dixon to accept Ms Davis’ entitlements as a worker with highest needs. It has elected not do so do. Therefore, Ms Davis has been forced to make an application to the Commission for appropriate orders concerning her current level of impairment.
The defendant argues that such relief is not available to Ms Davis by reason of the provisions of s 322(A) of the 1998 Act in that she is limited to one assessment only of the degree of permanent impairment. It is submitted that that entitlement has already been exhausted as Ms Davis has already had two such assessments.
It is unnecessary for me on this application to consider the merits of those arguments. It is sufficient to identify that given the stance taken by Ms Davis it may take some time before she will know what entitlements she would forego by pressing her work injury damages claim. As I have indicated I am not prepared to strike out the pre-filing statement at this point, whilst that uncertainty remains and whilst Ms Davis has been forced into instituting proceedings in the Commission to clarify the issue.
The defendant argues that the delay in Ms Davis pursuing her work injury damages claim is prejudicial. I note that the defendant has undertaken a factual investigation of the circumstances of Ms Davis’ alleged injuries and has filed evidence in support of its pre‑filing defence.
Beyond the presumptive prejudice created by delay, the defendant has not asserted actual prejudice or any other factor relevant to the exercise of the discretion in that regard. Whilst I accept that further delay may result in some element of presumptive prejudice to the defendant, such prejudice is outweighed by the factors against striking out the pre-filing statement at this time.
For these reasons, the application to strike out the pre-filing statement is dismissed.

COSTS

Ms Davis submits that she has been put to the expense of engaging legal representation to meet this application and seeks an order that the applicant/defendant pay her costs.
The defendant submits that there should be no order for costs particularly against the background that Ms Davis was afforded three separate indulgences by the Commission with respect to complying with orders and directions for the filing of a Notice of Opposition.
The present application has been unsuccessful and I see no reason not to make the usual order that costs follow the event.
I order that the applicant/defendant pay Ms Davis’ costs of this application.

ORDERS

The application to strike out the pre-filing statement is dismissed.
The applicant/defendant is to pay Ms Davis’ costs of this application.

Judge Keating
President

13 December 2016