St Vincent's Private Hospital v Hassoun
[2013] NSWWCCPD 67
•27 November 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||
| CITATION: | St Vincent’s Private Hospital v Hassoun [2013] NSWWCCPD 67 | ||
| APPLICANT DEFENDANT: | St Vincent’s Private Hospital | ||
| RESPONDENT CLAIMANT: | Steven Hassoun | ||
| FILE NUMBER: | 3528/13 | ||
| DATE OF DECISION: | 27 November 2013 | ||
| SUBJECT MATTER OF DECISION: | Application to Strike Out Pre-filing Statement; s 151DA of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Applicant Defendant: | Hicksons Lawyers | |
| Respondent Claimant: | Brydens Lawyers | ||
| ORDERS MADE ON APPLICATION: | 1. The Application to Strike Out the Pre-filing Statement is dismissed. 2. Costs shall be costs in the cause. | ||
THE APPLICATION
This is an application filed by the claimant/defendant, St Vincent’s Private Hospital (St Vincent’s), seeking an order, under s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the plaintiff’s pre-filing statement served on or about 30 March 2012 be struck out.
BACKGROUND TO THE APPLICATION
The plaintiff, Mr Hassoun was employed by St Vincent’s as a security guard.
On or about 21 February 2007, Mr Hassoun was called upon to attend to a disturbance in a patient’s room. In the course of dealing with the disturbance, Mr Hassoun was assaulted by the patient’s husband and was rendered unconscious. As a result of his injuries Mr Hassoun suffers from a range of continuing physical disabilities and has submitted to spinal surgery. In addition to the physical injuries Mr Hassoun has developed a post-traumatic stress disorder and has continuing symptoms of anxiety and depression.
Mr Hassoun alleges that the assault was due to St Vincent’s negligence by reason of the fact that the person who assaulted him had a known propensity for violence which the hospital had not disclosed to him and by reason of its having failed to provide adequate training and backup systems to ensure his safety.
Since February 2007, Mr Hassoun has been incapacitated with the exception of attempts to return to work on light duties between 23 July 2008 and 31 March 2009.
Pursuant to s 315(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) a claimant who is 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. On 30 March 2012, Mr Hassoun’s then solicitors, Slater & Gordon, served on St Vincent’s a pre-filing statement on his behalf.
On 10 May 2012, St Vincent’s filed a pre-filing defence. It denied liability and alleged contributory negligence. It alleged among other things that Mr Hassoun placed himself in a position of danger and voluntarily assumed the risk of an injury to himself. It further alleged that he had failed to follow training and other procedures which had been provided to him.
The parties attempted to mediate the claim. On 29 May 2012, a Certificate of Mediation Outcome was issued by the Commission. The Certificate noted that St Vincent’s had declined to participate in mediation on the grounds that it wholly disputed liability.
On 25 October 2012, St Vincent’s legal representative, Hicksons Lawyers (Hicksons) wrote to Slater & Gordon putting them on notice of their intention to apply to have the pre-filing statement struck out on the basis that Mr Hassoun had not pursued his common law action.
On 30 October 2012, Slater & Gordon informed Hicksons that Mr Hassoun had changed his solicitors and that NSW Compensation Lawyers were now representing him.
On 31 October 2012, NSW Compensation Lawyers wrote to Hicksons confirming that they had received instructions to act for Mr Hassoun and were in the process of reviewing documentation received from his former solicitors. A request was made to delay any action with respect to the filing of a Pre-filing Strike Out Application for a further 21 days in order to afford them an opportunity to consider the documentation.
On 6 March 2013, Hicksons filed an Application to Strike Out a Pre-filing Statement (the Application).
Mr Hassoun failed to comply with Commission orders with respect to the filing and service of a Notice of Opposition to the Application. I caused to have the matter listed for a telephone conference on 20 June 2013. As the Commission could not be satisfied that Mr Hassoun was legally represented, arrangements were made to bring notice of the telephone conference to his attention. However, at the appointed time he could not be contacted and did not participate in the telephone conference.
On 9 July 2013, I issued a series of Directions requiring St Vincent’s to personally serve Mr Hassoun with the Application. Further Directions were made requiring Mr Hassoun to lodge and serve any Opposition to the Application.
On 6 September 2013, Brydens Compensation Lawyers (Brydens) lodged a Notice of Opposition to the Application. The submissions lodged with the notice referred to the difficulties encountered by Mr Hassoun in securing appropriate legal representation however, it failed to address the substance of St Vincent’s Application.
On 19 September 2013, I convened a further teleconference and made further Directions for the filing of supplementary submissions. The supplementary submissions were received on 14 November 2013.
ON THE PAPERS
Pursuant to s 354(6) of the 1998 Act if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under that Act without holding any conference or formal hearing.
Having regard to the terms of Practice Direction No 1 and the submissions received from the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine this application without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.
LEGISLATION
Section 151DA of the 1987 Act provides:
“151DA Time not to run for commencement of proceedings in certain cases
(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-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(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.
(3) The defendant may apply to the President to have the pre-filing statement 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.”
ST VINCENT’S SUBMISSIONS
St Vincent’s submit that it is now more than six months since the pre-filing defence was served and more than three months since the Certificate of Mediation Outcome. It wishes to bring finality to the potential work injury damages claim.
St Vincent’s contend that there is a potential limitation issue under s 151D of the 1987 Act bearing in mind that the injury occurred on 21 February 2007 and it is prejudiced by the continuing delay.
St Vincent’s seeks an order under s151DA(3) of the 1987 Act that Mr Hassoun’s pre-filing statement be struck out by reason of the delay in prosecuting his claim for work injury damages.
MR HASSOUN’S SUBMISSIONS
Mr Hassoun’s initial submissions of 28 August 2013 state that he first consulted Slater & Gordon to act for him in relation to his claim. For reasons that are not explained that retainer apparently terminated and Mr Hassoun then sought advice from NSW Compensation Lawyers in about October 2012. Mr Hassoun states that in about March 2013 he was requested to fund the disbursements to be incurred in the preparation of his claim. As he was unable to meet that request that retainer also terminated.
In about July 2013, Mr Hassoun retained Schofield lawyers to act on his behalf. That retainer apparently came to an end for reasons that are not apparent.
On 15 August 2013, Mr Hassoun instructed his present solicitors Brydens. In Mr Hassoun’s initial submissions he simply submitted that the Application was opposed. It was asserted that Mr Hassoun exceeded the impairment threshold of 15 per cent and that he was intending to seek advice from senior counsel with the intention of proceeding with his work injury damages claim.
In his supplementary submissions of 14 November 2013 Mr Hassoun concedes that there has been delay in pursuing his claim which has been brought about by the difficulty he has encountered in securing legal representation due to his inability to fund the disbursements required to investigate his case. Mr Hassoun stated that he is currently receiving about $400 per week and has a dependent wife and three children and was unable to afford the legal costs. Mr Hassoun states that after he retained Brydens on 15 August 2013 he was able to pursue the necessary investigations as Brydens were prepared to initially fund the costs associated with obtaining an expert’s report.
Mr Hassoun states that he has now obtained an expert’s report on the liability issues and has had the benefit of advice from senior counsel. Based on that advice he states that he now intends to pursue his claim for work injury damages.
Mr Hassoun rejects the suggestion of prejudice by reason of the delay, pointing to the fact that the police investigated the incident on 21 February 2007 and obtained statements from crucial witnesses which should be readily available. He also submits that incident reports and a workplace risk assessment were obtained by the defendant and should assist in overcoming any prejudice on account of delay.
SUBMISSIONS IN REPLY
In reply, St Vincent’s submit that it is prejudiced by the delay in Mr Hassoun pursuing his claim. In particular a crucial witness, John Harrison, cannot be located. Mr Harrison is described in the recent report of Mr Bell, Mr Hassoun’s expert witness, as his “security partner”. St Vincent’s submit that attempts to locate Mr Harrison have been ongoing since 2012.
The recently served expert’s report raised a number of issues which will require further investigation with a number of hospital staff that may or may not remain in St Vincent’s employ or may no longer be contactable.
St Vincent’s further submit that filing an amended defence and serving an expert’s report in reply would not adequately cure any prejudice caused by the delay since the pre-filing statement was served.
DISCUSSION AND FINDINGS
It is apparent from the background to the Application that there has been considerable delay on Mr Hassoun’s part in pursuing his claim for work injury damages in a timely way. A Certificate of Mediation Outcome was issued on 29 May 2012. Since that time there has been no impediment to Mr Hassoun commencing proceedings in the District Court.
In its Application, St Vincent’s submit that it wishes to bring finality to the potential work injury damages claim.
Although considerable lengths have been taken to have Mr Hassoun respond to this Application, his submissions indicate that he has changed solicitors on several occasions principally because of his inability to meet requests for the funding of investigations necessary for the preparation of his claim due to his limited means.
However, Mr Hassoun has now reached a satisfactory funding arrangement with his current solicitors and submits that it is his intention to pursue his claim to finality. The fact that he has now retained and has been provided with a report from an expert witness and has consulted with senior counsel in recent months adds weight to his submission.
As I said in Luke v McCarthy & McCarthy [2008] NSWWCCPD 123 at [29], there are sound policy reasons for the inclusion of s 151DA(3) in the 1987 Act. The provision ensures that the parties have sufficient time to finalise the pre-litigation phase of the proceedings. It also ensures that there is a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim before embarking on litigation.
In their submissions in reply, St Vincent’s indicated that by reason of Mr Hassoun’s delay a crucial witness for the defendant is unable to be located. Little weight, if any, can be placed on that submission because by its own admission St Vincent’s have been attempting to locate the witness for two years. It is apparent that St Vincent’s were unable to locate the witness before it filed its pre-filing defence and for a period during which the parties were legitimately attending to the pre-litigation process.
Mr Hassoun’s pre-filing statement was comprehensive and voluminous. The documentary evidence served in support of the pre-filing statement extended to four lever arch files. I note that the material includes a copy of an investigator’s report to CGU (St Vincent’s workers compensation insurer) dated 4 June 2008. The report attached signed statements of evidence from Mr Hassoun, a signed statement from an eyewitness to the alleged assault and several other St Vincent’s employees including the security manager, the operations supervisor, the associate nurse unit manager and the clinical services manager. I note that Mr Hassoun has been in receipt of weekly payments of workers compensation which has resulted in numerous medical investigations and reports which are available to St Vincent’s. For the reasons given, I am not satisfied that any actual prejudice has been established by reason of Mr Hassoun’s delay.
I am satisfied, that Mr Hassoun genuinely intends to proceed with his work injury damages claim forthwith. I am also mindful of the fact that Mr Hassoun has submitted to spinal surgery and has a proven psychological condition as a result of the alleged assault which has been the subject of findings and orders made by the Commission in a determination dated 29 July 2010, matter number 2222/2010. In the event that he proves that St Vincent’s were negligent, as alleged, the potential damages award could be substantial.
In the circumstances I am not satisfied that Mr Hassoun should be denied the opportunity to proceed with his claim.
ORDERS
The Application to Strike Out the Pre-filing Statement is dismissed.
COSTS
Costs shall be costs in the cause.
Judge Keating
President
27 November 2013
I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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