Stines v The Geo Group Australia Pty Limited

[2021] NSWDC 550

District Court

New South Wales

Medium Neutral Citation:

Stines v The GEO Group Australia Pty Limited [2021] NSWDC 550

Hearing dates:

16 September 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Civil

Before:

Coleman SC DCJ

Decision:

In relation to the Motion filed by the first defendant on 2 July 2021 (2016/365887‑003), I make orders as follows:

1. The proceedings are dismissed as against the first defendant.

2. I order that the plaintiff pay the first defendant's costs of the proceedings.

In relation to the Motion filed by the plaintiff on 15 September 2021 (2016/365887‑004), I make an order as follows:

1. I direct that the balance of the proceedings, as against the second defendant, be transferred to the inactive list.

Catchwords:

TORTS – Intentional Torts – Injury to Offender in Custody – Recovery of Personal Injury Damages – No Award of Damages where Permanent Impairment is Less than 15%

CIVIL PROCEDURE – Summary Dismissal – Defence Application for Dismissal – Whether the Claim has any Reasonable Prospects of Success – Whether Exemplary Damages Constitute Personal Injury Damages – Whether the Plaintiff can Seek a Further Assessment of his Impairment – Whether the Proceedings Should be Dismissed for Want of Due Despatch

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3, 21, 26A, 26B, 26C, 26D, 26D(4), 26X

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60

Limitation Act 1969 (NSW) s 18A

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 314, 322, 322A, 322A(1), 322A(3), 322A(4), 325, 326, 327, 327(1), 327(3), 327(3)(b), 327(4), 329, 329(1), 329(1A), 329(1)(b)

Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 12.7(1), 13.4

Cases Cited:

Adriaansen v Dungog & District Retirement Living Ltd [2016] NSW WCCPD 36

Borgese v Carter & Blumer Pty Ltd t/as Carter & Blumer [2016] NSWSC 1252

Collier v State of New South Wales(No 2) [2014] NSWSC 1359

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Simmons v NSW Trustee and Guardian [2014] NSWCA 405

State of New South Wales v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439

State of NSW v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327

State of New South Wales v Williams [2014] 242 A Crim R 22; [2014] NSWCA 177

Stines v The GEO Group Pty Ltd [2021] NSWSC 375

Texts Cited:

Courts Legislation Amendment Bill 2010 (NSW)

Courts Legislation Amendment Bill 2010 (NSW), Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 June 2010

Category:

Procedural rulings

Parties:

Robert Stines (Plaintiff)
The GEO Group Pty Limited (First Defendant)
Simon Waterfall (Second Defendant)

Representation:

Counsel:
Mr G Schipp (Plaintiff)
Mr J Entwisle (First Defendant)

Solicitors:
Prominent Lawyers (Plaintiff)
Sparke Helmore Lawyers (First Defendant)

File Number(s):

2016/00365887‑003; 004

Publication restriction:

N/A

Judgment

1. Before the Court are two motions, one moved on by each of the first defendant and the plaintiff.

2. By Notice of Motion filed 2 July 2021, the first defendant seeks orders summarily dismissing the proceedings relying on either or both of UCPR r 13.4 or r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW).

3. Those orders are sought on two bases:

1. First, that the plaintiff’s claim for damages discloses no reasonable cause of action given that he has been assessed as having a degree of permanent impairment of 4%, which is less than the threshold required for a claim against a protected defendant: s 26C of the Civil Liability Act 2002 (NSW) (“CLA”); and

2. Second, because it says that the plaintiff has failed to prosecute this claim with due despatch since it was filed on 6 December 2016, noting that the proceeding is still at an early stage despite it being now 7.5 years since the relevant incident occurred and over 4.5 years since the proceedings were commenced.

4. The plaintiff opposes the relief sought by the first defendant. He says he can seek a further assessment of his impairment. He also says that even if he cannot claim compensatory damages, he can maintain a claim for exemplary damages.

5. By Notice of Motion filed 15 September 2021, the plaintiff seeks an order that the matter be referred to the inactive list. That motion was filed the day before both motions came before the Court for hearing on 16 September 2021. The first defendant did not object to it being heard concurrently with its motion.

6. For the reasons below, the proceedings will be dismissed as against the first defendant. The plaintiff should pay the first defendant’s costs of the proceedings.

BACKGROUND

7. The plaintiff is currently in prison. He is due for release in February 2022. He is under an intellectual disability and has a tutor appointed.

8. The first defendant, the GEO Group Pty Limited (“GEO”), was the operator of the Parklea Correctional Facility.

9. The plaintiff alleges that, on 26 December 2013, while he was an inmate at that facility, he was assaulted by the second defendant, Mr Simon Waterfall (“Waterfall”). Waterfall was then a correctional officer employed by GEO. The plaintiff further alleges that, as a result of that assault, he sustained injuries, including physical and psychological injuries.

10. Waterfall did not appear at the hearing before me. I understand that he has not filed a Defence or otherwise participated in the proceedings since being served with the Statement of Claim on 5 January 2017. I am also told that the second defendant was prosecuted, convicted and imprisoned as a result of the assault on the plaintiff. He has since been released, sometime in early 2021.

11. Counsel for the plaintiff confirmed that the plaintiff had not sought default judgment against Waterfall due to his failure to appear. If the claim against the first defendant fails, the plaintiff wishes to keep his claim against the second defendant.

12. Despite some uncertainty in the form of the relief sought by the first defendant, Counsel for the first defendant confirmed that the relief sought by it is limited to relief in its favour and it does not seek any relief insofar as the second defendant is concerned.

Procedural Background

13. On 6 December 2016, the plaintiff filed his Statement of Claim against GEO and Waterfall seeking compensatory, exemplary and aggravated damages. At that time, the plaintiff was represented by Santone Lawyers.

14. A number of events then followed, which are summarised in the annexure to the first defendant’s submissions. I do not repeat the entirety of those developments here, although note that they include the following:

1. In or about September 2017, Santone Lawyers ceased acting for the plaintiff;

2. In or about December 2017, the plaintiff’s current solicitors commenced acting on his behalf;

3. In June 2018, the plaintiff was sentenced to a minimum term of 2 years’ full‑time imprisonment: pp 151‑153 of the Joint Court Book (JCB);

4. On 23 May 2019, the first defendant filed a Notice of Motion seeking dismissal of the proceedings for want of due despatch;

5. On 3 June 2019, the plaintiff was assessed by Dr Oldtree‑Clark, Psychiatrist, in relation to his injuries and degree of permanent impairment (WPI);

6. On or about July 2019, Dr Oldtree‑Clark assessed the plaintiff in relation to his intellectual disability. A tutor was then appointed for the plaintiff shortly thereafter;

7. On 16 August 2019, the first defendant’s Notice of Motion filed on 23 May 2019 and seeking orders that the proceedings be dismissed for want of due dispatch was dismissed by consent;

8. On 28 January 2020, pursuant to s 325 of the WIM Act, a Medical Assessment Certificate (MAC) was issued by Dr Christopher Bench, who assessed the plaintiff’s degree of permanent impairment at 4%;

9. The plaintiff sought a review of the MAC pursuant to s 327 of the WIM Act. On 18 May 2020, following an appeal lodged by the plaintiff, the Appeal Panel issued a Certificate of Determination confirming the MAC;

10. The plaintiff applied for judicial review of the Appeal Panel decision. The application was heard in the Supreme Court of New South Wales, where Rothman J dismissed the plaintiff’s Summons with costs (Stines v The GEO Group Pty Ltd [2021] NSWSC 375). No appeal has been filed from that decision and the time for filing an appeal has expired;

11. On 8 June 2021, the plaintiff’s solicitors filed an affidavit of Mr Anthony Bazouni, which suggested that the matter be referred to the “Not Ready List”; and

12. The first defendant filed the Motion now before the Court on 2 July 2021.

15. In addition to the above procedural events, the plaintiff has failed to appear before the Judicial Registrar on at least one occasion. The solicitors for the first defendant have written to the plaintiff’s solicitors numerous times in respect of the status of the matter, the plaintiff’s intention to pursue the claim and proposing orders for the dismissal of the claim against the first defendant.

Common Ground

16. It is accepted by both parties that the provisions of Part 2A of the CLA apply to the plaintiff’s claim. That part of the CLA contains provisions with respect to claims for personal injury damages by offenders in custody, of which the plaintiff is one.

17. Both parties agree that the first defendant is a “protected defendant” and that, by reason of s 26C of the CLA, no damages may be awarded (whether for economic or non‑economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender of at least 15%. As noted above, the MAC assessed the degree of permanent impairment of the plaintiff at 4%.

Issues

18. I have been provided with written submissions from each party and I am grateful for that assistance. At the conclusion of the hearing, I granted leave to the plaintiff to file and serve supplementary submissions limited to the question of the application of s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and its inter‑relationship with ss 314 and 329 of that Act. The first defendant had leave to reply.

19. I have received the additional submissions from Mr Schipp, counsel for the plaintiff, dated 22 September 2021. Those submissions extend beyond the grant of leave in that they also make additional submissions to those made by the plaintiff’s original written submissions and the oral submissions of Mr Schipp at the hearing. Whilst such a breach of the leave granted is not to be encouraged, as the first defendant has had the opportunity to respond to them, I will take those submissions into account, including to the extent they go beyond the leave granted.

20. From the written submissions as expanded upon by the oral submissions and supplementary written submissions, it seems to me that the general issues to be addressed are:

1. Does the application of ss 26C and 26X of the CLA to the plaintiff’s claim prevent him from obtaining exemplary damages, against the first defendant in the sense that exemplary damages are not personal injury damages within the meaning of the CLA?

2. Can the plaintiff seek a further assessment of his degree of permanent impairment?

3. Should the proceedings be dismissed for want of due despatch?

21. There are sub‑issues to each of the main issues I have set out above, which I will deal with below.

PARTIES’ SUBMISSIONS

22. I will briefly set out the main thrust of each party’s submissions. I will deal with more specific submissions as necessary later in these reasons when dealing with a particular topic.

The First Defendant’s Submissions

No Reasonable Prospects of Success

23. The first defendant argues that the proceedings have no reasonable prospects of success and should be dismissed. In support of that submission, it raises a number of key aspects of the claim which I will outline briefly.

24. As I have stated above, the Plaintiff accepts that the first defendant is a “protected defendant” for the purposes of Part 2A of the CLA. In addition, the claim by the plaintiff against the first defendant is pursued solely on the basis that it is vicariously liable for the actions of Waterfall.

25. Counsel for the first defendant submits that, by operation of s 26X of the CLA, the first defendant cannot be liable for exemplary or punitive damages where an action is against a protected defendant for personal injury damages and based upon vicarious liability.

26. Secondly, the first defendant submits that damages for economic loss or non‑economic loss may only be awarded against it where the injuries allegedly sustained by the plaintiff result in either the death of the plaintiff or in a degree of permanent impairment of at least 15%: s 26C of the CLA. As I have outlined above, the plaintiff was assessed by Dr Bench at 4% whole person permanent impairment and that decision was recorded in the MAC dated 28 January 2020. That decision was then unsuccessfully appealed and a subsequent application for judicial review was rejected: Stines v The GEO Group Australia Pty Limited [2021] NSWSC 375.

27. The first defendant submits that the assessment of 4% is final and the plaintiff is therefore not entitled to damages for economic loss or non‑economic loss, by reason of s 26C of the CLA. The first defendant submits that the operation of the relevant provisions of the CLA (ss 26C and 26X) are such that the plaintiff is now prevented from recovering compensatory, aggravated and exemplary damages. In those circumstances, the first defendant submits the proceedings should be dismissed.

Failure to Prosecute with Due Despatch

28. Counsel for the first defendant further and, in the alternative, submits that the proceedings should be dismissed for lack of due despatch. He argued that the plaintiff had failed to take timely steps to prepare the matter for hearing since it was commenced in December 2016. In an annexure to its written submissions, the first defendant outlined the lengthy procedural history of the matter, much of which I have summarised at [14] above.

29. Aside from what it describes as the plaintiff’s general “dilatory conduct” towards the matter, the first defendant points to a number of significant factors which have delayed the progression of the matter. Of particular note is that no substantive steps have been taken by the plaintiff to advance the matter to hearing since pleadings closed and the fact that no attempt was made to have the plaintiff’s degree of injury assessed until May 2019 which, as I have noted above, resulted in a determination that the plaintiff’s injuries did not meet the s 26C threshold.

30. The first defendant also submits that its first Notice of Motion filed on 23 May 2019 (referred to above at [14]) was resolved by consent on the understanding that the proceedings would be conducted with more promptness.

31. Notwithstanding the fact that the plaintiff has been incarcerated since June 2018, the first defendant reiterates that the proceedings were commenced in 2016 and also that a tutor has been appointed to act on the plaintiff’s behalf who could have progressed the matter whilst the plaintiff was in prison. It submits that its ability to properly mount a defence to the proceedings will be impacted by the fact that years have passed since the events the subject of the proceedings occurred.

The Plaintiff’s Submissions

No Reasonable Prospects of Success

32. The plaintiff referred to the “test” in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applicable to applications for summary dismissal. He says that test provides that, before summary relief is granted, the case must be “so manifestly faulty that it does not admit of argument” or “disclose a cause of action”. The plaintiff observes that in applying this test on applications such as this one, the Court must take the plaintiff’s case at its highest. He submits that, if this is done for the reasons next submitted, the Court could not be satisfied that the relief sought by the first defendant should be granted.

33. The plaintiff does not dispute that Part 2A of the CLA applies to the plaintiff’s claim and that, by reason of s 26C of that Act, no damages may be awarded against a protected defendant unless the degree of permanent impairment is 15% or greater. However, for the reasons below, the plaintiff submits that his claim is not manifestly inarguable.

34. First, Counsel for the plaintiff submits that, whilst s 26C of the CLA means that a finding of impairment below 15% precludes the plaintiff from compensatory damages (including aggravated damages), it does not preclude him from recovering exemplary damages as sought in his pleadings. Counsel for the plaintiff relied in this regard on the decisions of the Court of Appeal in State of New South Wales v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 and State of NSW v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327. I will return to these decisions below.

35. In relation to s 26X of the CLA, the plaintiff argues that that section does not assist the first defendant because in both Corby and the State of New South Wales v Steven Charles Radford [2010] NSWCA 276, the Court of Appeal indicated that exemplary damages may not be “personal injury damages” within the meaning of that section.

36. Second, the plaintiff submits that it is arguable that he may be able to seek another assessment of his degree of permanent impairment on his release from prison. The plaintiff refers in this regard to the comments of Rothman J in Stines v The GEO Group Australia Pty Limited [2021] NSWSC 375 at [143]. Although his Honour dismissed the plaintiff’s application for judicial review, he said at [143]:

The only additional issue is that the complaint of the plaintiff is understandable and reasonable, not because of any error by either the AMS or the Appeal Panel, but because of the difficulty of the factual assessment that was required in the absence of evidence of the plaintiff’s conduct or capacity outside the institutional setting. It may well be that, on release, further evidence will be available that discloses factual error in the assessment and which could form the basis of a subsequent further appeal under s 327(3)(b) of the 1998 Act, subject, of course, to the leave of the President under s 327(5).

(emphasis added)

37. The plaintiff accepts that his Honour’s comments emphasised above were not the subject of submissions. However, he submits that when an analysis of the relevant provisions of the WIM Act is undertaken, it is at least arguable that he can have this Court, or the Commission, refer him for a further medical assessment or reconsideration of the MAC.

Due Despatch

38. The plaintiff submits that, despite a tutor having been appointed, his incarceration and diagnosis of an intellectual disability have made it difficult to obtain instructions. He has also changed solicitors.

39. The plaintiff notes that he was required to undergo an assessment under the WIM Act. After that, he appealed. He then launched the judicial review application which was only determined in mid‑2021. All of these things took time. He wants to be re‑assessed when he is released from prison.

40. The plaintiff submits that he has had issues with the grant and later withdrawal of legal aid. Plus, the onset of COVID‑19 has impacted the plaintiff’s ability to conduct the litigation.

41. For those reasons, the plaintiff submits that the Court should not make an order dismissing the proceedings for want of due despatch. He submits that it would not be just to so order. He notes that, apart from costs and the prospect of not being able to recover them, no significant prejudice is identified by the first defendant. He submits this is not prejudice such as to warrant an order dismissing the proceedings being made.

CONSIDERATION

42. Before I consider the arguments in respect of s 26X of the CLA and whether the plaintiff can seek a further assessment under the WIM Act, I should deal with the plaintiff’s submission that the relief sought by the first defendant should not be granted as the plaintiff’s arguments in respect to each of these matters is not unarguable. The plaintiff says (at [19]‑[20] of his written submissions of 15 September 2021) that the Court of Appeal in Corby and Radford said that exemplary damages may not be personal injury damages within the meaning of the CLA. He says it is not for this Court to “decide [these] matters”. The plaintiff correctly notes that exceptional care is required in granting summary relief when there are disputed facts. He submits that in light of the Court of Appeal’s comments with respect to exemplary damages, “it is hard to see how the claim fits the criteria”.

42. The plaintiff makes the same submissions with respect to his arguments on whether or not he is able to seek a further assessment of his degree of permanent impairment. He says (at [33] of his submissions):

1. Therefore it is by no means unarguable that the Plaintiff can be reassessed for permanent impairment on his release. Again, it is not for the Court on this motion to determine these matters. It is for the Defendant to satisfy the Court that it should be summarily dismissed on the relevant standard.

   44. This part of the application is brought by the first defendant in reliance upon UCPR 13.4. That rule relevantly provides:

13.4 Frivolous and vexatious proceedings

1. If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

   (a)   the proceedings are frivolous or vexatious, or

   (b)   no reasonable cause of action is disclosed, or

   (c)   the proceedings are an abuse of the process of the court,

   the court may order that the proceedings be dismissed generally or in relation to that claim.

2. The court may receive evidence on the hearing of an application for an order under subrule (1).

   45. In Simmons v NSW Trustee and Guardian [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) said (at [196]‑[201]):

3. It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel)[1964] HCA 69; 112 CLR 125at 130 (Barwick CJ).

4. More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

   "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

5. Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

6. In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

   "The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."

7. Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

8. No argument was raised on this appeal as to whether this test requires refinement in light of provisions of the Civil Procedure Act. That is, whether the statutory directives about case management and the "overriding purpose" of the rules might warrant courts striking out proceedings on "less substantial grounds" than those stated in General Steel: see Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [155] (Young CJ in Eq); Bott v Carter [2012] NSWCA 89 at [13]-[14] (Basten JA); Shaw v New South Wales at [33] and [128]-[134] (Barrett JA).

   46. In State of New South Wales v Williams [2014] 242 A Crim R 22; [2014] NSWCA 177 at [71], in the context of striking out a defence, Emmett JA said:

9. The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140).

   47. As Hatzistergos DCJ observed in Boland v SAS Trustee Corporation [2021] NSWDC 545 at [53], Emmett JA’s comments were found to be equally applicable to an application to dismiss a Statement of Claim under UCPR 13.4 by Campbell J in Collier v State of New South Wales(No 2) [2014] NSWSC 1359 at [44].

   48. I accept, as a general proposition, that where there are disputed facts relief such as that sought by the first defendant should be granted with great care. However, I do not think that this is such a case. The plaintiff has not pointed to any disputed factual matters, let alone any such matters which would impact upon the construction of the relevant provisions of the CLA or WIM Act. In that sense, I am in the same position as the trial judge would be in determining these questions. The trial judge would have to decide “these matters” and in my opinion, I am able to decide them on this application on exactly the same facts as would be the case at trial.

   49. I have carefully considered the warning that caution must be exercised in granting summary relief. However, I am in the same position as a trial judge would be to decide these issues. In my opinion, consideration of the overriding purpose and the dictates of justice weigh on the side of deciding the matter now, rather than putting the parties to the further time and expense of a hearing.

   50. Additionally, whilst the plaintiff’s arguments require a careful analysis of the legislative provisions and involve what might be thought to be complex questions of law, that complexity of itself does not preclude relief as sought being granted in the appropriate cases. If I form the view that the plaintiff’s arguments are untenable, then summary relief can be granted. In my opinion, this is an appropriate case to grant the relief.

The Application of Section 26X of the CLA

51. As has been set out above, the issue here is whether the plaintiff is precluded from recovering exemplary damages by reason of the operation of s 26X of the CLA. It is accepted by the plaintiff that, by reason of the 4% assessment of the degree of the plaintiff’s permanent impairment (but subject to his submissions on having a further medical assessment), he cannot recover compensatory damages including aggravated damages: s 26C CLA.

52. The plaintiff submits, however, that he can still recover exemplary damages. He submits that exemplary damages are not “personal injury damages” within the meaning of the CLA. He submits that a plaintiff can sue for exemplary damages alone, without suing for compensatory damages.

53. As I have said above, the plaintiff relies on the Court of Appeal decisions in State of NSW v Corby [2010] NSWCA 27; (2010) 76 NSWLR 439 and State of NSW v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327.

54. In Corby, the defendant moved to strike out the plaintiff’s claim on the basis that, as an offender in custody, he could not recover aggravated and exemplary damages due to the provisions of s 26C of the CLA. That section provides:

26C   No damages unless permanent impairment of at least 15%

No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.

55. It was common ground in those proceedings that the plaintiff could not recover compensatory damages as he did not suffer a degree of permanent impairment of at least 15%. The trial judge refused to strike out the Statement of Claim and the defendant appealed.

56. The Court of Appeal (Basten JA with whom Beazley and Tobias JJA agreed) held that there was no basis for distinguishing between assessment of general damages and aggravated damages. Accordingly, Part 2A of the CLA applied with respect to an award of aggravated damages and s 26C precluded the recovery of such damages. However, the language of s 26C of the CLA was not apt to refer to exemplary damages and accordingly the plaintiff was able to maintain a claim for exemplary damages.

57. Basten JA traced the history of the provisions of Part 2A of the CLA and the appropriate construction of definitions relevant to that Part. His Honour also referred to s 21 of the CLA, which provides:

1. Limitation on exemplary, punitive and aggravated damages

In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.

58. His Honour considered the operation of the CLA and the concepts of damages and injury insofar as they were relevant. After setting out the definition of “damages” in s 3 of the CLA (namely, “damages” includes any form of monetary compensation subject to some exclusions), his Honour at [18]‑[20] said:

1. There is no suggestion that any of the exclusions apply in the present case, but they are relevant to the extent that, at least by implication, the concept being defined might, absent the exclusions, have applied to such payments. Nevertheless, there was no discussion in the District Court, nor in this Court, as to the scope of the exclusions. Rather, the argument centred on the principal element of the definition, namely “any form of monetary compensation”. The argument for the plaintiff was that neither aggravated damages nor exemplary damages constituted a form of “monetary compensation” and therefore neither fell within the definition.

2. On its face, that argument would not be conclusive. The definition is expressed to be inclusive and does not purport to identify everything which falls within its terms. On the other hand, the phrase “any form of” is of such potential breadth of application as to imply that a payment which does not in any sense constitute monetary compensation would not be included.

3. The last argument requires attention to the purpose of both aggravated and exemplary damages. For the argument to succeed, it must be demonstrated that one or both of them do not constitute a form of monetary compensation, a matter discussed below. Even if that were established, it would then be necessary to demonstrate that the term “damages” does not in any event extend to payments which are invariably described by the law as forms of damages, whether aggravated or exemplary.

(bold emphasis added)

59. His Honour then set out the definition of “injury” in s 26A of the CLA and noted that in Pt 2A of the CLA, injury is equated with “personal injury” and is said to include impairment of a person’s physical or mental condition. His Honour then said:

1. The operation of Pt 2A (and thus s 26C) is addressed in s 26B, in the following terms:

   26B   Application of Part

   (1)   This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of:

   (a)   an injury to a person received by the person was an offender in custody… Being an injury caused by the negligence (that is, the failure to exercise reasonable care and school) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose taught the protected defendant is vicariously liable.…

2. There are a number of relevant aspects of this provision… Secondly, as s 26B indicates that s 26C is limited in its operation to “personal injury damages”. That phrase is in turn defined in s 26A to mean “damages that relate to the death of or injury to a person”. On one approach, a significant issue in the case is the scope of the words “relate to” as the form of identified connection between the damages and injury.

…

1. Finally, reading the relevant parts of the definitions into s 26B the following is achieved:

   “This Part applies to and in respect of an award of damages, that relate to impairment of a person’s mental condition, against the State, in respect of impairment of a person’s mental condition, being an impairment caused by the tort of [a police officer or public servant].

   60. His Honour ultimately concluded that the plaintiff’s submission that he was entitled to obtain aggravated damages as they fell outside the concept of “personal injury damages” in the CLA was untenable: at [47]. In respect to exemplary damages, his Honour said (from [49]):

2. There remains the question whether exemplary damages do not fall within Pt 2A because they do not constitute any form of monetary compensation. There are a number of reasons for not accepting that exclusion generally.

3. First, the term “exemplary (or punitive) damages” is well-established in legal parlance. There is no other phrase (such as civil penalty) which is applied to such an award. That understanding and use of language is reflected in other statutory provisions including the Workers Compensation Act which provides that “[a] court may not award exemplary or punitive damages to a person in an award of damages”: s151R. Because the definition of “damages” in s3 [of the CLA] is inclusive, there is no reason to exclude from its scope the concept universally referred to as “damages” in the general law of tort.

4. Secondly, far from supporting the conclusion that exemplary damages are not included within the statutory concept in s26B, s21 might give rise to the contrary inference. It expressly envisages that, absent its own prohibition, a court could award exemplary or punitive damages (and aggravated damages) by way of an award of personal injury damages.

5. Thirdly, with the exception of the words in parenthesis in s 26C, the language of the Civil Liability Act is not restricted to damages “for” or “assessed by reference to” the loss suffered by the injured party. Rather, the language of connection is “in respect of” or that “relate to” the injury in question. Whilst Pt 2A may not apply in respect of a tort where there has been no injury at all, assuming that the term “injury” extends beyond a recognised psychiatric illness, it is, in practical terms, difficult to imagine a case in which exemplary damages would be awarded absent any personal injury.

6. There are, however, particular factors which militate against the conclusion that exemplary damages are covered by s 26C. They derive from the combined operation of s 21 and s 26C, when viewed in the light of the history of the amendments to the Civil Liability Act. Thus, the Civil Liability Amendment (Offender Damages) Act introduced s 26C but applied only to injuries caused by negligence. At that time, s 21 operated so as to preclude any claim for aggravated damages or exemplary damages in an action for an award of personal injury damages where the injury was caused by negligence. Accordingly, the drafter of s 26C would not have envisaged any need to address the question of aggravated or exemplary damages. That in turn explains the words in parenthesis and s 26C, referring to damages “whether for economic or non-economic loss”. That language was apt to deal with claims for ordinary compensatory damages in negligence cases, which were all that were available.

7. When Pt 2A was extended to cover intentional torts, it operated, in that respect, alone and without complimentary assistance of Pt 2. In such cases, s 21 had no operation. (Even if Pt 2 had had operation, s 21 was limited to negligence cases.) However, no amendment was made to s 26C. Because aggravated damages constitute a form of compensation for non-economic loss, language of s 26C, without amendment, was apt to include such damages within its preclusive operation. However, it is language, including the words in parenthesis, is not apt to refer to exemplary damages. Its original operation was not intended to cover exemplary damages. Accordingly, without amendment its language remains inapt for that purpose.

8. There remains a question as to whether, in the language adopted by the State, awards of exemplary damages were entirely “parasitic”, in the sense that they could not stand alone. There may be a sense in which that is true under the general law, though whether as a practical effect, rather than a legal requirement, might require consideration. The objection is, in any event, one which cannot affect a statutory reform. Subject to constitutional constraints, the Parliament is entitled to vary, by way of limitation or expansion, the heads of damages available in respect of torts, just as it may vary the elements and existence of causes of action. If it is done so, so as to leave available only one head of damages, that result is effective.

9. In substance, the argument must be that as a result is manifestly unlikely and bespeaks some error in the process of statutory construction which reach that conclusion. However, the premises not necessarily sound. The purpose of s 26C is to preclude recovery of damages where the impairments suffered by the offender is relatively minor. The Parliament may well not have been prepared to exclude liability for exemplary damages, even in cases of relatively minor physical or mental impairment, with the conduct of its officers, for which it accepts vicarious liability, demonstrates egregious disregard of the civil rights of its citizens. Whether that be so or not, it is a decision to be made by the Parliament and not by the courts. There is nothing in the Second Reading Speech which suggested that the Parliament had addressed the question, the oversight, if such it be, being explained by the non-inadvertence to the legislative history.”

   (bold emphasis added)

   61. At the time of the decision in Corby, s 26X had not been inserted into the CLA.

   62. On 28 June 2010, the Courts Legislation Amendment Act 2010 (NSW) was assented to. That Act inserted s 26X into the CLA. That section provides:

26X   Limitation on exemplary, punitive and aggravated damages against protected defendant in cases of vicarious liability

(1)   In an action against a protected defendant for the award of personal injury damages where the act or omission that caused the injury or death was a tort (whether or not negligence) of a person for whose tort the protected defendant is vicariously liable, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.

(2) Subsection (1) does not limit the application of section 21 to actions for the award of personal injury damages to which this Part applies.

63. In the second reading speech for the Bill, Attorney‑General Hatzistergos, as his Honour then was, relevantly said:

Schedule 1.6 to the Bill makes amendments to the Civil Liability Act 2002. Firstly, it amends Part 2A to provide that, in an action against a protected defendant for the award of personal injury damages where the act or omission that caused the injury or death was a tort-whether or not negligence-of a person for his tort the protected defendant is vicariously liable, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages. This amendment ensures that offenders in custody are treated the same way as ours other citizens under the Act, who are unable to obtain exemplary, punitive or aggravated damages for personal injuries in negligence actions, or inactions in tort-whether or not for negligence-against the person who is precariously liable for the tort of another.… New section 26X is inserted.

(emphasis added)

64. In oral submissions, counsel for the first defendant took the Court to the explanatory note accompanying s 26X in the Courts Legislation Amendment Bill 2010 (NSW), which reads as follows:

Recovery of exemplary, punitive or aggravated damages by offender in custody

Item [3] of the proposed amendments to the Act provides that a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages in an action against a protected defendant for the award of personal injury damages in respect of the death or injury of an offender in custody where the act or omission that caused the injury or death was the tort of a person for which the protected defendant was vicariously liable. Section 21 of the Act already makes similar provision in relation to all actions in negligence for personal injury damages.

65. It may be thought that the text of s 26X, in particular its application to an “action against a protected defendant for an award of personal injury damages”, leaves open the question raised by the plaintiff. That is whether, as the plaintiff submits, exemplary damages are within the definition of personal injury damages as defined in the CLA. If they are not, there would be a subsidiary question of whether the plaintiff can bring an action for assault and battery and seek only exemplary damages. However, for the reasons below, I have formed the view that the operation of s 26X of the CLA in this case means that the plaintiff cannot be awarded exemplary damages in these proceedings.

66. It is convenient to repeat the relevant definitions from the CLA. Section 26A of the CLA relevantly provides:

(1) In this Part:

…

“Injury” means personal injury and includes the following:

(a)   impairment of a person’s physical or mental condition,

(b)   disease

…

“personal injury damages” means damages that relate to the death of or injury to a person.

67. Thus, an action for the award of personal injury damages is an action for damages that relates to the death or impairment of a person’s physical or mental condition or disease.

68. In this case, the plaintiff brings his action following the assault and battery of him by Waterfall. The action is brought against the first defendant solely on the basis that it was vicariously liable for the actions of Waterfall and the other officers referred to in the Statement of Claim. It is said in [42] of the Statement of Claim that, “As a result of the Battery and the Officers’ breach of duty, the plaintiff suffered injury, loss and damage”. Particulars of injury, exemplary damages and aggravated damages are then provided.

69. Included in the plaintiff’s claim are that he suffered physical and mental impairment (the injury) as a result of the battery.

70. In my opinion, insofar as these proceedings claim an award of exemplary damages, that claim is made in proceedings which are an “action for the award of personal injury damages”. That is, applying the definitions as set out above, the proceedings are an action for damages that relate to the impairment of the plaintiff’s physical and mental condition.

71. In Corby, when discussing the application of Pt 2A of the CLA to damages, Basten JA noted that s 26B, dealing with the application of Pt 2A, speaks of damages “in respect of” an injury; s 26A speaks of damages that “relate to” an injury. The use of the words “relate to” rather than the use of “for” indicates a greater degree of flexibility in the relationship between the damages and the injury: Corby, ibid at [34]; Radford, ibid. at [100] per Sackville AJA. Those words are apt to include both aggravated and exemplary damages: Corby at [34].

72. In my opinion, the extract from the second reading speech referred to above supports my conclusion. The reference by the Attorney‑General to the insertion of s 26X to ensure that offenders in custody are treated the “same way as other citizens under the Act” who are unable to obtain exemplary damages for personal injuries in negligence actions, must be a reference to s 21 of the CLA. So much is confirmed when one has regard to the explanatory notes. Giving the language of s 26X a purposive construction, it precludes an offender in custody, such as the plaintiff, who brings an action for damages which relate to an impairment of that person’s physical or mental condition against a protected defendant, such as the first defendant, from being awarded exemplary damages.

73. I would add that the plaintiff accepts that Pt 2A of the CLA applies to these proceedings. It must be remembered that s 26B states that Pt 2A applies relevantly “…to and in respect of an award of personal injury damages against a protected defendant” in respect of an injury to a person whilst in custody, being an injury caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable. Implicit in the plaintiff’s acceptance that Pt 2A applies is an acceptance that the proceedings are an action where he is seeking an award for personal injury damages.

74. I do not accept that Corby decided that exemplary damages cannot fall within the definition of “personal injury damages” in the CLA. Indeed, the observations of Basten JA in [49]‑[52] of Corby are to the contrary. The relevant ratio of Corby was that exemplary damages did not fall within the operation of s 26C of the CLA.

75. Basten JA at [49]‑[52] of Corby addressed the question of whether exemplary damages do not fall within Pt 2A because they do not constitute any form of monetary compensation. His Honour said (at [49]): “There are a number of reasons for not accepting that exclusion generally”. His Honour then set out those reasons.

76. With respect, for the reasons set out by his Honour, I do not accept that exemplary damages do not fall within Pt 2A of the CLA because they do not constitute any form of monetary compensation. As his Honour noted, the definition of “damages” in s 3 of the CLA is inclusive. As Basten JA says, exemplary damages, whilst awarded for different reasons to compensatory damages, are and have been “universally referred to as “damages” in the general law of tort”.

77. Further, as his Honour observed in [52], it may be arguable that Pt 2A may not apply in respect to a tort where there had been no injury at all. The question would then arise as to whether a claim for exemplary damages absent any injury could be maintained. However, that is not this case. The plaintiff does allege injury. He alleges physical and psychological injury and the claim for exemplary damages relate to that injury and the alleged conduct which caused that injury for which he says the first defendant is vicariously liable.

78. The decision of State of NSW v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 also does not hold that exemplary damages are not personal injury damages within the meaning of the CLA. That case dealt with an application by a defendant to strike out or dismiss the proceedings as being statute barred under s 18A of the Limitation Act 1969 (NSW). The question was whether the respondent’s pleaded case based on an alleged assault was a cause of action “for damages for personal injury” within the meaning of s 18A of the Limitation Act 1969 (NSW) and whether the respondent ought have leave to further amend its pleading.

79. Whilst reference was made by Sackville AJA (with whom Beazley and Macfarlan JJA agreed) to Corby, that was in the context of comparing the statutory provisions in the Limitation Act and the CLA. His Honour did, obiter dicta, discuss exemplary damages and whether a plaintiff could bring a claim solely for such damages in an action founded on trespass to the person without seeking compensatory damages. However, it was not necessary for the purposes of that decision to decide that question: see [123].

80. Reference was made by counsel for the plaintiff to [120] of the decision in Radford. Contrary to the plaintiff’s submissions, however, that paragraph does not decide that exemplary damages are not “personal injury damages” within the meaning of the CLA.

81. In my opinion, by reason of the operation of s 26X of the CLA, the plaintiff is precluded from seeking exemplary damages against the first defendant in these proceedings as they are proceedings for an award of personal injury damages. Combined with the operation of s 26C (subject to the right to a further medical assessment), this means that the plaintiff cannot be awarded any compensatory (including aggravated) or exemplary/punitive damages.

Can the Plaintiff Seek Another Assessment of His Degree of Permanent Impairment?

82. In order to deal with this question, it will be necessary to set out the relevant statutory provisions from the WIM Act. First, however, reference should be made to the observations of Rothman J set out at [36] above. That comment plays no part in the ratio of his Honour’s decision. Counsel for the plaintiff submits that the observation was “plainly an aside”. I agree and I do not consider the observation binds me to reach the same conclusion.

83. With respect to his Honour’s observation, I have formed the view that s 327(3)(b) of the WIM Act does not allow a further appeal with or without leave from the President of the Workers Compensation Commission (now known as the Personal Injury Commission).

84. The starting point in consideration of the relevant legislative provisions is the importation of Pt 7 of Chapter 7 of the WIM Act by s 26D of the CLA. That section provides (in so far as is relevant):

Assessment of permanent impairment

26D Assessment of permanent impairment

(1)   The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the"1998 WC Act" ).

(2)   Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if--

(a)   an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and

(b)   a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and

(c)   a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and

(d)   section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and

(e)   a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and

(f)   the provisions of that Part applied with such other modifications as may be prescribed by the regulations.

(2A)   …

(2B)   …

(2C)   …

(3)   If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act.

(3A)   A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner's reasons for that assessment.

(4)   A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist in accordance with the 1998 WC Act.

(5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%.

(6)   In this section—

"modification" includes an addition, omission or substitution.

"WorkCover Guidelines" has the same meaning as it has in the 1998 WC Act.

85. Part 7 of the WIM Act relevantly provides:

1. Definitions

   In this Act—

   "medical dispute" means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--

   (a)   the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

   (b)   the worker's fitness for employment,

   (c)   the degree of permanent impairment of the worker as a result of an injury,

   (d)   whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

   (e)   the nature and extent of loss of hearing suffered by a worker,

   (f)   whether impairment is permanent,

   (g)   whether the degree of permanent impairment of the injured worker is fully ascertainable.

2. Referral of medical dispute for assessment

   (1)   A medical dispute (other than a dispute concerning permanent impairment of an injured worker) may be referred for assessment under this Part by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute. The President is to give the parties notice of the referral.

   (2)   The parties to the dispute may agree on the medical assessor who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the President is to choose the medical assessor who is to assess the dispute.

321A   Referral of medical dispute concerning permanent impairment

(1)   The regulations may make provision for or with respect to--

(a)   the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and

(b)   the giving of notice of a referral to the parties to the dispute.

(2)   Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.

(3)   A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.

1. Assessment of impairment

   (1)   The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

   (2)   Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

   (3)   Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

   Note:   Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.

   (4)   A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.

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.

(1A)   A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

(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--

(a)   assessment and a medical assessment certificate under this Part, or

(b)   a determination by the Commission under Part 4.

(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).

86. Once the medical assessor to whom the medical dispute is referred has made the assessment, a certificate (medical assessment certificate) will be provided as to the matters referred for assessment: s 325.

87. That MAC is conclusively proved to be correct as to, inter alia, the degree of permanent impairment of the offender as a result of an injury: s 326.

88. The MAC can be the subject of an appeal by application to the President. Section 327 provides:

1. Appeal against medical assessment

   (1)   A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

   (2)   A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

   (3)   The grounds for appeal under this section are any of the following grounds--

   (a)   deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

   (b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

   (c)   the assessment was made on the basis of incorrect criteria,

   (d)   the medical assessment certificate contains a demonstrable error.

   (4)   An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

   (5)   If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.

   (6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

   89. It can be seen that the President must be satisfied that, on the face of the application and any submissions made, at least one of a number of specified grounds of appeal has been made out: s 327(1), (3) and (4).

   90. Section 327(3)(b), mentioned by Rothman J (see [36] above) does not give the plaintiff any further right of appeal than that which he has already exercised. Additionally, that section must also be read together with s 322A and the rest of Pt 7.

   91. Section 327(6) provides that the President may refer a medical assessment for further assessment under s 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on an appeal).

   92. Section 329 provides that:

1. Referral of matter for further medical assessment or reconsideration

   (1)   A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by--

   (a)   the President as an alternative to an appeal against the assessment as provided by section 327, or

   (b)   court or the Commission.

   (1A)   A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.

   (2)   A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.

   (emphasis added)

   93. In this case, on the application of the plaintiff, the Commission referred the plaintiff out for assessment in 2019. It will be recalled, as set out above, that the assessment led to a MAC which assessed the plaintiff’s degree of permanent impairment at 4%. The Appeal Panel confirmed that assessment.

   94. The plaintiff submits that s 329 provides a pathway for him to have the assessment of his degree of permanent impairment made under s 322 referred again on one or more further occasions for assessment by this Court (relying on s 329(1)(b)). Additionally, the plaintiff submits that s 329(1A) allows the President to refer his assessment again on one or more further occasions to the medical assessor for reconsideration.

   95. In answer to this submission, the first defendant refers to s 322A(1). It says that plainly only one assessment may be made of the degree of permanent impairment of the plaintiff by reason of this section. It notes that s 322A(3) prevents a medical dispute about the degree of permanent impairment of the plaintiff from being referred for an assessment if the matter has already been the subject of an assessment and a medical assessment certificate (MAC) under Pt 7. It points out that s 322A(4) prescribes that the section does not affect the operation of the appeal under s 327.

   96. In response, the plaintiff submits that s 322A has no application to the plaintiff’s claim in these proceedings. He says that s 322A is limited to a claim for “permanent impairment compensation”. However, as the first defendant submits, the Court should not read that section in a way that so limits its operation. The first defendant submitted in its supplementary submissions:

Section 322A applies to the plaintiff’s claim

[4] At PSS [2]-[11], the plaintiff seeks to construe s 322A in a way that limits its operation to specific disputes. The Court would not read down the plain language of the statute in that way or read into the provision words that do not exist: Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[40] (French CJ, Crennan and Bell JJ); [65] (Gageler and Keane JJ). Two points in particular are raised.

[5]   First, at PSS [3], it is said that s 322A is limited to a claim for ‘permanent impairment compensation’. However, the only reference to that concept is in s 322A(2) which reads:

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). [emphasis added]

[6] Those are not words of limitation. The words in parenthesis are clarificatory, identifying that s 322A applies to limit the medical certificate that can be used in subsequent medical disputes including a claim for permanent impairment compensation. It is therefore irrelevant that ‘[t]he Plaintiff’s claim bears no resemblance to a claim under s 66’. It does not need to.

[7]   Second, at PSS [9], it is submitted that s 322A(1A) does not apply because that provision only applies to a ‘threshold dispute’ as defined in s 314. Again, however, the purpose of s 322A(1A) is to expand the operation of the section – not limit it. That sub-section extends the operation of s 322A to include an assessment that is not the subject of referral under Part 7 of Chapter 7. It does not say, expressly or implicitly, that assessments that are the subject of a referral under Part 7 (which includes a referral under Part 2A of the Civil Liability Act by reason of s 321) are not otherwise subject to the operation of s 322A. Nor (cf PSS [10]) was there any need for the legislature to expressly refer to s 314 or ‘threshold disputes’ in Part 2A of the Civil Liability Act for s 322A to apply. The legislature expressly referred to Part 7 of Chapter 7 of the WIM Act, which Part includes s 322A.

97. I accept the first defendant’s submissions in this regard. Accordingly, in my opinion, a proper construction of these provisions means that there can only be one assessment made as to the degree of permanent impairment of the plaintiff, which assessment may be the subject of an appeal. Once that has occurred, as it has in this case, then no further assessments of the degree of permanent impairment of the plaintiff can be sought or made.

98. Insofar as s 329(1) provides that, for a matter for assessment being referred again on one or more occasions, it clearly states that this can only occur “in accordance with this Part”. As I have said above, s 322A prescribes that there can only be one medical assessment for the degree of permanent impairment. I do not accept that s 329 means that there can be repeated and never ending referrals of matters dealing with the degree of permanent impairment of an offender in custody once that assessment, and any appeal from that assessment, have been completed.

99. In his supplementary submissions, the plaintiff also referred to the decision of the Workers Compensation Commission in Adriaansen v Dungog & District Retirement Living Ltd [2016] NSW WCCPD 36. In that case, the applicant sought a further assessment of permanent impairment by way of reconsideration. At [46], the Acting President referred to the potential impact of s 322A. At [58], the Acting President said:

1. Roche DP in Milosavljevic at [58] observed that s 329 “provides no guidance as to how or when it is to be used”. Malpass AsJ in v Liverpool City Council & Anor [2007] NSWSC 320 at [26]–[27] observed:

   [26] The intended function of s 329 is far from clear. It is a question that was not the subject of full argument. It may be that it affords a remedy which should have been pursued with the Commission by the plaintiff in lieu of the application for leave to appeal.

   [27] Also, it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.”

   100. The plaintiff submits (at [16]‑[18] of his supplementary submissions) as follows:

   [16] Despite the existence of s322A, the Acting President said (at [81]):

   I accept, consistent with Mansour, that an order can be made pursuant to s 329(1)(b) of the 1998 Act, notwithstanding that there has been a MAP decision.

   [17]   At [91], the Acting President said:

   Section 329(1)(b) provides a remedy in circumstances where a Medical Appeal, for whatever reason, is not sufficient to satisfy the dictates of justice.

   [18] The principles that emerge from the cases is that the Certificate is not binding and may be the subject of reconsideration under s329 if the interests of justice dictate, to be assessed on a case-by-case basis ([105]), notwithstanding s322A.

   101. The first defendant, in response to this submission (which is one of the new matters raised by the plaintiff), submitted as follows:

2. Adriaansen was an appeal from the decision of an arbitrator to refuse to refer a matter for further assessment under s 329(1)(b) of the WIM Act. Although the operation of s 322A was averted to in the submissions (see [29], [46], [52]), there was no challenge to the arbitrator’s decision on the basis that s 322A precluded a further assessment. Further, in confirming that there was power under s 329 to grant the referral, the Acting President Michael Snell (at [81]) applied the decision of Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286 as correctly stating the scope of s 329. However, that decision: (a) pre-dated the insertion of s 322A; and (b) did not involve an assessment of the degree of permanent impairment.

3. Adriaansen (and the other decisions referred to accordingly do not consider the issue in dispute in this case and do not support the submission made at PSS [18]. In the absence of authority, the Court must construe s 322A in accordance with its terms so as to give effect the legislature purpose. Those terms and that purpose are clear: there can only be one assessment of the degree of permanent impairment. The provision would be rendered meaningless (and the legislative intent behind the provision defeated) if it was possible for there to be multiple re-assessments of the degree of permanent impairment, pursuant to referrals under s 329.

   102. I accept the first defendant’s submissions. The decision of Adriaansen is distinguishable for the reasons given by the first defendant. As such, on a proper construction of s 322A, I conclude that only one medical assessment for a degree of permanent impairment (and an appeal from that assessment) can be made. I do not accept that the legislation provides a person such as this plaintiff unlimited opportunities to seek further assessments if they are not satisfied with the assessment made. As was done here, the party assessed can appeal the assessment and seek judicial review of the appeal. There must be some finality in the process. In my opinion, that finality is achieved by the construction of s 322A which I prefer.

   103. Another point raised by the plaintiff for the first time in supplementary submissions concerns a suggestion that s 26D(4) of the CLA provides an alternative way by which he can have the assessment of the degree of his permanent impairment referred to an approved medical specialist. He says that section allows a Court (including this Court) at any stage in these proceedings, being proceedings on a claim for damages, to refer the matter for assessment again.

   104. However, that section plainly notes that any assessment for a degree of permanent impairment of the offender by a court must be “in accordance with the 1998 WC Act” (the WIM Act). The operation of that section and the potential assessment of any matter pursuant to it must, therefore, be subject to s 322A. I do not accept that s 26D(4) of the CLA provides any additional rights for reassessment, nor overrides the operation of s 322A of the WIM Act.

   105. For those reasons, in my opinion, the plaintiff has no further rights of appeal with respect to the assessment of the degree of his permanent impairment. Nor does he have any further rights to have the assessment referred out again for reassessment or reconsideration.

   106. Therefore, by reason of the operation of ss 26C and 26X of the CLA, the plaintiff cannot be awarded any damages, including exemplary damages in these proceedings. He cannot have his degree of permanent impairment re-assessed.

Has the Plaintiff Failed to Prosecute the Claim with Due Despatch?

107. The plaintiff also moves to have the proceedings dismissed for want of due dispatch relying on UCPR 12.7(1).

108. In Borgese v Carter & Blumer Pty Ltd t/as Carter & Blumer [2016] NSWSC 1252, Harrison J summarised the principles relevant to UCPR 12.7(1) (at [60]‑[61]):

1. The court obviously has a discretion when considering an application made pursuant to UCPR 12.7(1). The relevant principles were succinctly summarised by Simpson J in Hoser v Hartcher [1999] NSWSC 527, cited by McCallum J in Templar v Watt [2014] NSWSC 937 at [25] as follows:

   “[25]   …

   (1)   the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed…;

   (2)   the discretion should be exercised only in a clear case where it is manifestly warranted…; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion…;

   (3)   any explanation offered by the plaintiff for the delay in proceeding must be considered…;

   (4)   personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant…;

   (5)   a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity…;

   (6)   delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor ... But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;

   (7)   the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

   (8)   prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case.... Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay;

   (9)   what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay…;

   (10)   the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out…;

   (11)   the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics…. The ultimate aim of a court is the attainment of justice.... To adapt the words of the High Court …, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.” [Citations omitted]

   [61] Part 6 of the Civil Procedure Act 2005 has come into operation since Hoser v Hartcher. These principles are still valuable but must be considered now in the light of the mandatory requirements to have regard to the overriding purpose in s 56 and the dictates of justice in the sense referred to in s 58. Sackville AJA commented in Bi v Mourad [2010] NSWCA 17 at [41] that the statements to be derived from Hoser v Hartcher may now be “somewhat too generous”. The dictates of justice must be considered having regard to the position of all parties in the litigation. The Court may dismiss proceedings for want of due despatch even where the default or delay is not intentional or contemptuous.

   109. On the application of the above principles and having regard to overriding purpose and the dictates of justice in the sense referred to in ss 56 and 58 of the Civil Procedure Act 2005 (NSW). I do not accept that the proceedings should be dismissed for want of due dispatch. I do not accept, for the reasons outlined by the plaintiff in his submissions set out at [38]‑[41] above, that the balancing of the interests of the parties and the public interest in the efficient administration of justice have regard to the requirements of ss 56‑60 of the Civil Procedure Act 2005 (NSW) would move me to exercise my discretion to make the orders sought.

   110. I accept that the combination of the plaintiff’s disability, the difficulties faced by him in undertaking steps whilst imprisoned and the fact that he has taken all available steps to obtain his assessment in a reasonable time, mean that the relief sought by the first defendant pursuant to UCPR r 12.7 should be refused.

ORDERS

111. I will make to order sought in the first defendant’s motion dismissing the proceedings as against it. I will make the orders in the plaintiff’s motion that the matter should be placed in the inactive list in so far as they concern the second defendant.

112. In relation to the Motion filed by the first defendant on 2 July 2021 (2016/365887‑003), I make orders as follows:

1. The proceedings are dismissed as against the first defendant.

2. I order that the plaintiff pay the first defendant's costs of the proceedings.

113. In relation to the Motion filed by the plaintiff on 15 September 2021 (2016/365887‑004), I make orders as follows:

1. I direct that the balance of the proceedings, as against the second defendant, be transferred to the inactive list.

**********

Decision last updated: 15 October 2021