State of New South Wales (Ambulance Service of NSW) v McKittrick

[2009] NSWCA 63

New South Wales

Court of Appeal

CITATION:

STATE OF NEW SOUTH WALES (AMBULANCE SERVICE OF NSW) v McKITTRICK [2009] NSWCA 63
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

20 March 2009

 
JUDGMENT DATE: 

30 March 2009

JUDGMENT OF:

Beazley JA at 1; Basten JA at 1

DECISION:

(1) Grant the State of New South Wales leave to appeal.

(2) Allow the appeal and set aside order 7 made in the District Court on 12 June 2008.

(3) Order that the Respondent pay the Appellant’s costs of the proceedings in this Court.

CATCHWORDS:	APPEAL – interlocutory practice and procedure in District Court – provision of particulars – ground of appeal previously addressed - PROCEDURE – particulars – order for further and better particulars in s 151Z(1)(d) indemnification proceedings – applicability of r 15.12 – Uniform Civil Procedure Rules 2005 (NSW), r 15.12 - WORKERS' COMPENSATION – nature of indemnification proceedings – burden of proving damages payable by putative tortfeasor – Workers Compensation Act 1987 (NSW), s 151Z(1)(d)
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), rr 15.12, 21.2, 21.8, 22.1 Workers Compensation Act 1987 (NSW), s 151Z Workmen’s Compensation Act 1906 (UK), s 6
CATEGORY:	Principal judgment
CASES CITED:	Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 Currie v Dempsey (1967) 69 SR (NSW) 116 Dare v Pulham [1982] HCA 70; 148 CLR 658 Esso Australia Ltd v Victorian WorkCover Authority [2000] VSCA 74; 1 VR 246 In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166 Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207
PARTIES:	State of New South Wales (Ambulance Service of NSW) (Applicant) Todd McKittrick (First Respondent) Paul Baker (Second Respondent)
FILE NUMBER(S):	CA 40301/08
COUNSEL:	S G Campbell SC/M Jenkins (Applicant) DM Wilson (Respondents)
SOLICITORS:	TurksLegal (Applicant) Moray & Agnew (Respondents)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1571/07
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	12 June 2008

CA 40301/08
DC 1571/07

BEAZLEY JA
BASTEN JA

30 March 2009

STATE OF NEW SOUTH WALES (AMBULANCE SERVICE OF NSW) v Todd McKITTRICK

Headnote

The State of New South Wales (“the plaintiff”) was making workers’ compensation payments to a former ambulance officer who was injured when a vehicle collided with the rear of the ambulance. The plaintiff claimed indemnity against the driver of the vehicle. The driver sought further and better particulars by notice of motion. On 12 June 2008, Johnstone DCJ ordered the plaintiff to provide particulars in respect of certain aspects of its claim. The plaintiff sought leave to appeal this order. The Court of Appeal granted leave.

The issue for determination on appeal was whether the order was appropriate.

The Court held, allowing the appeal:

1. Rule 15.12 of the UCPR does not apply to s 151Z indemnity proceedings; further, aspects of the rule are inapt for these proceedings. There is a danger in ordering particulars “in accordance with” the rule: [7]–[8], [31].

Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144, applied.

2. Absent a greater degree of precision, the party ordered to provide further particulars in accordance with r 15.12 that are within its knowledge will be unable to know what is required to comply with the order. That is particularly so where the order incorporates the party’s “knowledge” without identifying the facts supposedly known by it: [31].

3. The fact that there is evidence on which a plaintiff seeks to rely which appears to contradict its claim is not necessarily a reason to require the provision of further particulars. To obtain an order for further particulars, the defendant must demonstrate the potential prejudice to it of having to prepare for trial and defend a case, the details of which are not sufficiently revealed in the pleadings, but could reasonably be expected to be: [33].

CA 40301/08
DC 1571/07

BEAZLEY JA
BASTEN JA

30 March 2009

STATE OF NEW SOUTH WALES (AMBULANCE SERVICE OF NSW) v Todd McKITTRICK

Judgment

1 Judgment of THE COURT delivered by Basten JA: These proceedings concern a claim by the State of New South Wales for indemnity in respect of workers’ compensation payments made by it to a former ambulance officer who was injured in the course of his employment. The claim is brought against the driver of a vehicle which collided with the rear of an ambulance, whilst the ambulance officer was attending the victim of an earlier accident.

2 An application was made for leave to appeal in respect of orders made by Johnstone DCJ following delivery of judgment on 12 June 2008 on a notice of motion in the District Court. Order 7 required the State to provide particulars in respect of certain aspects of its claim and was in the following terms:

“7. The plaintiff is to provide particulars of economic loss in accordance with r 15.12 of the UCPR that are within its knowledge as a plaintiff in a representative capacity and not extending to matters solely within the knowledge of the worker, to be provided by 17 July 2008.”

3 The State faced four serious obstacles in seeking to obtain a grant of leave to appeal. First, the matter was one of interlocutory practice and procedure in another court, with which this Court would not normally interfere: In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318. Secondly, the purposes and principles relating to the provision of particulars are well-established: see, eg, Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). Thirdly, on its face the order did not appear to be patently inappropriate, oppressive or unjust. Fourthly, the question of particulars in such proceedings had recently been addressed by this Court in Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 (Giles JA, Mason P and Santow JA agreeing). Nevertheless, there are circumstances in which this Court may intervene in interlocutory matters where it is persuaded of the necessity of that course in maintaining the regularity of the administration of justice. This was such a case.

Nature of proceedings

4 Where an employee is injured in circumstances creating a potential liability to pay damages on the part of someone other than the employer, and the employer pays compensation to the employee, the employer is entitled to recover from the putative tortfeasor the amount of the compensation so paid: Workers Compensation Act1987 (NSW) (“the 1987 Act”), s 151Z(1)(d). That entitlement does not depend upon the employee bringing proceedings against the putative tortfeasor for damages, although the extent of the indemnity will be limited to the amount of damages payable. It may therefore happen, as it did in the present case, that an assessment must be made of the damages payable to the employee in proceedings to which he or she is not a party. Further, because a cause of action under the indemnity arises upon each payment of compensation, the proceedings may ultimately be brought, as they were in this case, many years after the accident in which the employee was injured. The fact that the employee, whose injuries and loss are to be assessed, is not a party to the proceedings can give rise to difficulties in carrying out an assessment of damages. However, these difficulties are not unique to this provision: they can also arise in circumstances where an employee sues the third party tortfeasor which then seeks to reduce its liability by reference to the proportionate liability of the employer (which may have a significantly lesser liability for damages to the employee) in circumstances where that employer is not party to the proceedings: see s 151Z(2)(c) and (d).

5 As explained in Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 at 326 (Barwick CJ, McTiernan J agreeing), the right of statutory indemnity conferred on the employer as against the tortfeasor, may be traced back to the Workmen’s Compensation Act 1906 (UK), s 6(2). It is curious, therefore, that some of the procedural difficulties which can arise in relation to the indemnity have not previously been resolved. There may be various historical explanations: part of the explanation may be found in the relatively recent imposition of restrictions on claims for common law damages against employers, making it less likely that the worker will sue his or her employer.

6 Relevantly for present purposes, two aspects of the current proceedings are not in doubt. First, the proceedings are by way of a claim for a statutory indemnity and are not proceedings for damages for personal injury: see Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 209 (Kirby ACJ), 215-216 (Mahoney JA) and 220 (Meagher JA) and other authorities referred to in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 at [33]-[34] (McColl JA) and at [88]. Secondly, the damages for which the tortfeasor would have been liable to the worker constitute a cap on the indemnity: s 151Z(1)(d); Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166 at [100]. Certain anomalies may arise because the proceedings require the assessment of damages for personal injury, but are not themselves proceedings for damages for personal injury.

7 One consequence of this categorisation of the proceedings is that r 15.12 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), providing for particulars in personal injury cases, does not apply: see Allianz Australia at [22]. The non-operation of the rule is not, however, due to some oversight on the part of the drafter: rather, as will be explored in more detail below, it flows from the fact that many aspects of the rule are inapt for indemnity proceedings. For the same reason, there is a danger in ordering particulars “in accordance with” the rule, as if it provided an adequate and appropriate template for particulars in indemnity proceedings.

8 The anxiety of the respondent to require the State to provide particulars in accordance with the rule applicable in personal injury cases appears to derive from a belief that, absent such particulars, the respondent will be materially prejudiced as to the case he will have to meet in respect of damages. There are, however, three responses to this concern. First, a plaintiff cannot be required to particularise a case of which it is ignorant. Secondly, it is clear that the rule with respect to personal injury cases extends beyond that which might in the past have been thought to be sufficient particulars of a pleading by way of statement of claim. Thirdly, because these are not personal injury proceedings, the defendant may have other avenues of inquiry available to it, including discovery under UCPR, Pt 21 (rr 21.2, 21.8) and interrogatories under UCPR, Pt 22 (r 22.1).

9 The State raised as a preliminary issue the contention that it should not have been required to provide particulars of the damages suffered by the worker, because it did not bear the onus of proving such damages. This was said to flow from the fact that the cap on the indemnity was contained in parenthesis in s 151Z(1)(d) and hence constituted a limitation on liability, to be pleaded and proved by the defendant. That principle of statutory construction was said to derive from Currie v Dempsey (1967) 69 SR (NSW) 116 at 125-126 (Walsh JA). That case was concerned with quite a different statutory provision, namely the right of objection to the grant or renewal of a liquor licence under the Liquor Act 1912 (NSW). Whether a particular basis of objection merely put in issue a condition required to be established by the applicant, or raised a separate matter, was critical to the determination of where the burden of proof should lie: at 124. The general principle was stated by Walsh JA in the following terms at 125:

“In my opinion the [legal] burden of proof … lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, eg, if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an ‘avoidance’ of the claim which, prima facie, the plaintiff has.”

10 The principle may be conceded: the question concerns its application in particular circumstances. The right of recovery in s 151Z(1) is expressly conditioned upon the liability of “some person other than the worker’s employer to pay damages in respect of the injury”. To categorise the quantification of damages as a defence, rather than an essential element of the plaintiff’s cause of action for indemnity, is artificial and inappropriate. Further, judicial dicta clearly assume that the onus rests on the plaintiff; the absence of binding authority to that effect may well be because the contrary argument has not previously been thought tenable.

11 In Tickle Industries, Barwick CJ (McTiernan J agreeing) stated at 334:

“The compensating employer must establish against the tortfeasor the condition of his right of indemnity. He must establish that the defendant was the tortfeasor: that the injury he caused was a compensable injury: that the amount paid and claimed in the action was properly payable under the Compensation Ordinance : and the amount of damages properly assessable in respect of injury caused by the tortfeasor. I see no difficulty in the assessment of damages in the employer's action. Such damages will not be in any sense ‘notional’. Having established these matters, the employer will be entitled to judgment for the amount of compensation paid, if the damages equal or exceed that amount. If not, he will have judgment for the amount of the damages.”

12 In Esso Australia Ltd v Victorian WorkCover Authority [2000] VSCA 74; 1 VR 246 at 257, after noting that the statutory right of indemnity was not to be equated with the cause of action which the worker would have had against the putative tortfeasor, Winneke P (Tadgell and Chernov JJA agreeing) continued:

“This is so notwithstanding the fact that it is an ingredient of the statutory right, sought to be enforced, that the person from whom the indemnity is sought was liable to pay damages to the worker.”

13 This passage was expressly approved by the High Court on appeal: see Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520 at [14] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

14 In this Court in Allianz Australia, Giles JA stated at [5]:

“The [employer] as part of its case has to establish not only that the other driver was liable to the worker, but also the damages which the worker would have obtained in proceedings against the other driver.”

More recently, in Kurnell Transport , McColl JA at [40] treated Tickle Industries as authority for the proposition noted above.

15 This line of authority, albeit in discussion not central to the issues in dispute in the various cases, is squarely against the proposition that the defendant tortfeasor bears the onus of proving the damages payable. Nor do semantic variations between different provisions warrant any different view being taken with respect to the purpose and effect of s 151Z(1)(d). Accordingly, the onus of proving loss is upon the plaintiff, which must therefore particularise its claim as best it can.

16 Before considering the appropriateness of the order made by the trial judge, it is necessary to note so much of the procedural skirmishing between the parties as gave rise to the order made on 12 June 2008 in the District Court. Prior to April 2008, the defendant had been requesting particulars over a period of months, which the State had either been resisting or slow in providing. Apparently by way of belated response to an order of the Judicial Registrar, a statement of particulars was filed in the District Court on 11 April 2008. It is not necessary to set out the whole of that document, but it provides an expanded form of a schedule of damages and, in relation to “particulars of loss of income” stated:

“The Worker was completely incapacitated for work as a result of the injuries and disabilities occasioned by the Defendants since 26 February 1996 to date.”

17 Details were then provided of his weekly income, gross and net, at the time of the accident and a calculation of past loss of income was included. Under the heading “Future Loss of Income” the statement as to complete incapacity was reiterated and a claim was made for damages for future economic loss to the age of retirement. At about the same time, the State served on the defendant a schedule of compensation payments from 18 February 1996 to 9 April 2008. Perhaps inconsistently with a claim of complete incapacity, that schedule revealed that payments had been made from approximately the date of the accident (18 February 1996) until 30 May 1996, but that no further payment had been made until 23 October 2005. In addition, for a period in late 2005–early 2006, payments had been made for “partial incapacity”.

18 This material was no doubt potentially inconsistent with the particular claiming complete incapacitation and would have given rise to a question as to why the employer made no compensation payments for almost a decade, and then reinstated them. According to the evidence, that question was neither expressly asked nor answered. It was at this point that the process adopted below became confused.

19 On the same day as the particulars were served, the defendant wrote to the State in the following terms, after expressly referring to the statement of particulars:

“In the claim for past economic loss it is alleged the worker was completely incapacitated for work as a result of the injuries and disabilities since the accident. That is clearly not the case.
It appears the worker continued employment with the plaintiff until 2005, in addition to employment with the fire brigade and Army Reserve within this period.
Would you please provide proper particulars of past economic loss and details of all periods that the worker was absent from work.”

20 There appears to have been no response to that letter before the defendant, on 13 May 2008, filed a notice of motion seeking, amongst other orders, an order in the following terms:

“That the plaintiff provide further and better particulars as requested by the defendant in letter dated 11 April 2008.”

21 The affidavit in support of the motion recounted the history of the requests for particulars and noted that on “1 April 2008 the court ordered for [sic] the plaintiff to serve 15.12 particulars within 7 days”: affidavit of A M Duffy sworn 13 May 2008. That order was not, in terms, before this Court and the precise language used is not known. The affidavit continued at paragraph 49:

“In the statement of particulars served, the plaintiff alleges the worker was completely incapacitated for work as a result of the injuries and disabilities since the accident and claims the worker would have been entitled to economic loss accordingly. That is clearly not the case. It appears the worker continued employment with the plaintiff until 2005, in addition to employment with the fire brigade and Army Reserve within this period. It is not possible for the defendants to ascertain the worker’s various periods off work in relation to the 1996 accident without proper and accurate particulars.”

22 The position adopted by the defendant was twofold: first, he claimed that the facts known to him were inconsistent with the particulars alleged and, secondly, he was otherwise unaware of relevant facts. These responses to particulars are somewhat curious; neither taking issue with the correctness of an allegation, nor complaint about the difficulty of contradicting it, is usually a basis for asserting that the particulars are inadequate. What is required is particularity as to the claim made by the plaintiff: whether or not the plaintiff can establish its case is quite another question, as is the question of whether the defendant can resist the case.

23 As was acknowledged during the course of the hearing before Johnstone DCJ, the letter of 11 April itself failed to identify what was required with respect to additional particulars. The affidavit, in turn, only expressly required “proper and accurate particulars” with respect to the worker’s “various periods off work in relation to” the 1996 accident.

24 During the course of the hearing on 12 June 2008, as the transcript reveals, the course taken in argument took a rather different turn. When confronted by his Honour’s proposition that “this letter [of 11 April] is so inadequate that I’d rather you went away and redraft it with a proper request for particulars”, counsel for the defendant responded that the Court could order the plaintiff to provide “the particulars outlined in rule 15.12”: Tcpt (NSW DC), 12 June 2008, p 46. It then became common ground that the rule did not apply to the proceedings and that the plaintiff could not be directed to provide particulars which were beyond its knowledge. Counsel for the State then noted that his instructing solicitor had sworn an affidavit that the plaintiff had already provided “the best particulars available to it”: affidavit of M J Lamproglou, 27 May 2008, par 16. His Honour noted that he had not been cross-examined and could have been: Tcpt, p 50. There then followed a discussion as to some elements of r 15.12 which might be expected to give rise to particulars and counsel for the defendant proceeded to indicate which paragraphs had not resulted in the supply of documents or particulars.

Judgment in the District Court

25 The judgment of 12 June 2008 dealt with a number of matters, the request for particulars being addressed at [15]-[19]. Much of the discussion was focused on the proposition made by the plaintiff that it would not be “open” to the Court to make an order “analogous to r 15.12”: at [16]. This was apparently treated as a question of power, although the application of a rule “by analogy”, in proceedings to which it does not apply, may distract attention from the real question which is to identify the nature of the further and better particulars sought and whether it has been demonstrated that the present particulars, when viewed according to the relevant legal requirements, were inadequate.

26 After formulating an order in terms which were ultimately reflected in the order made, his Honour continued at [19]:

“In that regard I am satisfied that there is other material that would be within the knowledge of the plaintiff that falls within r 15.12, even with the limitations I have indicated, notwithstanding the assertion in the affidavit of Mr Lamproglou sworn 27 May 2008 to the effect that the plaintiff has provided the best particulars available to it: see paragraph 16 of that affidavit. I simply do not accept that that could be the case.”

27 One problem with the factual conclusion is, as his Honour was aware, that Mr Lamproglou had not been cross-examined. A second problem was that various elements of r 15.12 and the particular inadequacies which might have elicited a specific response on behalf of the State had not been identified prior to the hearing.

28 Furthermore, only a handful of provisions in r 15.12 were actually discussed during the course of the hearing as possible matters to which further particulars might have been provided or documents disclosed. Nor was the order limited to these matters. Rather, the concession to the acknowledgement that r 15.12 was inapplicable in the proceedings was to qualify it by reference to the “knowledge as a plaintiff in a representative capacity”: judgment at [19].

29 The reference to representative capacity was inapt, though probably not critical in the context of the order. The phrase came from the judgment of Giles JA in Allianz Australia where, after noting the general principles in relation to particulars as being well-established, continued at [29]:

So also is it established that a party is obliged only to provide the best particulars it can, so that a party in a representative capacity (for example) may only be able to give general particulars (see Higgins v Weekes (1888) 5 TLR 238).”

30 As had been noted in written submissions filed in the District Court, the reference to representative capacity in that context arose from the fact that the plaintiff in Higgins was the administrator of an estate. There was no suggestion that the plaintiff in an indemnity claim was acting in a representative capacity, whether of the worker or of any other person. Somewhat awkwardly, the form of the order stating that the plaintiff was not required to particularise matters “solely within the knowledge of the worker” was presumably intended to negate any suggestion of representation in that respect. Nevertheless, in principle, the reference to representative capacity should simply have been omitted, because it was inaccurate.

31 More problematic was the apparent intention that restricting particulars to those within the knowledge of the plaintiff was an appropriate qualification on the scope of r 15.12. The reference to knowledge of the plaintiff should have been implicit in the form of the order in any event; the fact that it needed express recognition should have suggested the inappropriateness of making an order by reference to r 15.12. The form of the order also reveals the inadequacy of the finding that there was other material within the knowledge of the plaintiff which had not been made available, without any indication as to what that knowledge was or even the category of information into which it fell. A specific factual finding would have formed the basis of a more precise order. Absent a greater degree of precision, the party ordered to provide further particulars will be unable to know what is required to comply with the order. That is particularly so where the order incorporates its “knowledge” without identifying the facts supposedly known by it.

Conclusions

32 Such inadequacies in the fact-finding process on an interlocutory application, and in the form of an interlocutory order, would usually not warrant the intervention of this Court. The additional factor which justifies intervention in the present case is the inappropriate use of r 15.12 as the basis for an order for particulars in indemnity proceedings which happen to involve the assessment of damages in respect of personal injuries. Rule 15.12 is apt to apply in proceedings brought by the person suffering personal injuries, but not in indemnity proceedings brought by the person who has paid workers’ compensation. The inappropriateness of the rule in such cases is illustrated by the express exclusion of its operation with respect to proceedings under the Compensation to Relatives Act 1897 (NSW). Its application in this case thus constituted an error of principle. Further, it appeared in the course of argument that an order for particulars in such cases, by reference to r 15.12 was not uncommon in such proceedings in the District Court.

33 The order in the present case should be set aside. Some more particular form of order may nevertheless be appropriate. In particularising the payments for which indemnity was sought, the State produced a schedule indicating that no payments were made between 30 May 1996 and 23 October 2005. Why that was so is not known and was not explored in evidence on the application before the District Court. The fact that there is evidence on which a plaintiff seeks to rely which appears to contradict its claim is not necessarily a reason to require the provision of further particulars. To obtain an order for further particulars, the defendant must demonstrate the inadequacy and potential prejudice to it of having to prepare for trial and defend a case, the details of which are not sufficiently revealed in the pleadings, but could reasonably be expected to be.

34 There is no doubt that proceedings of this kind may present difficulties for the orderly conduct of a trial. The State indicated that, in the present case, the details of the worker’s circumstances were not fully known to it and might only become apparent in the course of his evidence at trial. The position of the defendant is that it will either have to conduct such pretrial inquiries as it can to meet the case as pleaded, or be forced to seek an adjournment if it is not in a position to meet the claim which presents itself when the evidence is called. Such a situation is undesirable and unsatisfactory, and should be avoided if possible. However, it is not to be avoided by an order of the kind made in the present case.

35 So far as the costs of the present proceedings in this Court are concerned, the State has been successful in having the challenged order set aside. On the other hand, it was unsuccessful in seeking to establish that the onus of proof with respect to damages lay on the defendant. The latter point was, however, a relatively small part of the case presented on the appeal. The State having been successful on its primary argument and obtained both a grant of leave and an order setting aside the order made in the District Court, should have its costs of the appeal.

36 Accordingly, the following orders should be made:

(1) Grant the State of New South Wales leave to appeal.

(2) Allow the appeal and set aside order 7 made in the District Court on 12 June 2008.

(3) Order that the Respondent pay the Appellant’s costs of the proceedings in this Court.

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