Workers Compensation Nominal Insurer v Athena Malikourtis as executrix of the Estate of the late Steven Malikourtis - [2018] NSWWCCPD 53

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	Workers Compensation Nominal Insurer v Athena Malikourtis as executrix of the Estate of the late Steven Malikourtis [2018] NSWWCCPD 53
APPLICANT DEFENDANT:	Workers Compensation Nominal Insurer (wrongly sued as Supa Meat Boxxe Pty Limited)
RESPONDENT CLAIMANT:	Athena Malikourtis as executrix of the Estate of the late Steven Malikourtis
FILE NUMBER:	5213/18
DATE OF DECISION:	5 December 2018
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Turks Legal
Respondent Claimant:	MDW Law
ORDERS MADE ON APPLICATION:	1. The Application to strike out the respondent claimant’s pre-filing statement is dismissed.

INTRODUCTION

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

BACKGROUND

Steven Malikourtis, the deceased claimant, was a butcher’s assistant for Supa Meat Boxxe Pty Limited.
On 22 February 2012, the deceased sustained a crush injury to his left hand when he was attempting to pass diced lamb through an electric meat tenderiser in the course of his employment with Supa Meat Boxxe Pty Limited.
On 21 December 2012, the deceased made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. That claim was resolved by agreement – consent orders were issued for 25% whole person impairment.
On 22 August 2013, the deceased’s then solicitors, Clamenz Lawyers, served a notice of claim on Supa Meat Boxxe Pty Limited for work injury damages.
On 21 May 2015, Clamenz Lawyers served a pre-filing statement on Supa Meat Boxxe Pty Limited.
On 18 June 2015, the applicant defendant’s solicitor, Turks Legal, served a pre-filing defence on Clamenz Lawyers. In the pre-filing defence the defendant was recorded as “The Workers Compensation Nominal Insurer (Incorrectly sued as Supa Meat Boxxe Pty Limited)”. Under pleading and particulars, in the pre-filing defence, it is recorded that while the deceased was employed by Supa Meat Boxxe Pty Limited that company had been deregistered and was not capable of being sued. Therefore, pursuant to s 154A of the 1987 Act the Workers Compensation Nominal Insurer was nominated as the appropriate defendant.
On 4 September 2015, Clamenz Lawyers filed in the Commission an Application for Mediation.
On 6 September 2015, Mr Malikourtis passed away from a pulmonary thromboembolism.
On 16 September 2015, Clamenz Lawyers allegedly advised Turks Legal that it would advise if the deceased’s estate intended to proceed with the work injury damages claim. No advice about the future conduct of proceedings was allegedly received by Turks Legal.
On 1 October 2015, Turks Legal filed a response to the application for mediation.
On 2 October 2015, Mediator Geri Ettinger was appointed to mediate the claim for work injury damages.
On 4 November 2015, Clamenz Lawyers sent a letter to the mediator requesting that the mediation be postponed until February 2016, due to the deceased’s recent death. It stated that it was waiting for the Coroner’s report to obtain further details regarding the cause of death and whether there was any causal link between initial work injury and death.
On 4 November 2015, the mediator sent an email to Clamenz Lawyers requesting that it advise the Commission “if and when you want [the matter] restored”.
On 15 January 2016, 22 April 2016 and 4 July 2016, Turks Legal contacted Clamenz Lawyers seeking an update on the matter. No response was received, until 18 July 2016.
On 18 July 2016, Turks Legal received correspondence from MDW Law, advising that they act for the deceased estate of Mr Malikourtis, under the instruction of the executrix, Mrs Athena Malikourtis (the deceased’s widow). The letter referred to Turks Legal’s email of 4 July 2016 and advised that it was “still considering our client’s position and we will require a further fourteen (14) days from the date of this letter to respond”.
On 1 August 2016, MDW Law provided Turks Legal with further correspondence advising that it would provide advice as to the deceased estate’s position shortly.
On 9 August 2016, Turks Legal had a telephone conversation with the deceased estate’s barrister, Hugh Somerville, regarding the work injury damages claim and the possibility of medical negligence proceedings.
On 2 November 2016, Turks Legal received an email from MDW Law regarding a potential resolution of the work injury damages claim.
On 3 November 2016 and 25 January 2017, Turks Legal contacted MDW Law enquiring whether the work injury damages claim was proceeding.
On 31 January 2017, MDW Law advised Turks Legal via email that a response to its enquiries would be provided shortly.
On 7 March 2017, Turks Legal emailed MDW Law seeking an update on the status of the matter.
On 13 March 2017, MDW Law sent Turks Legal an email regarding payments under the death benefit provisions. MDW Law referred to the possibility of entering into a Deed of Release. The parties’ legal representatives discussed the matter over the telephone on the same day.
At some point in or around April 2017, MDW Law raised a complaint with the Health Care Complaints Commission in respect of the medical treatment the deceased received immediately prior to his death.
On 9 May 2017 and 23 May 2017, Turks Legal sent a follow-up email to MDW Law seeking an update on the matter. It was not until 24 May 2017 that MDW Law advised Turks Legal that it expected to be in a position to advise of its client’s position shortly. It advised that it was “awaiting the findings of the Health Care Complaints Commission who have indicated that they will be available soon after 25 May 2017.”
On 30 June 2017, Turks Legal sent a further email to MDW Law seeking a follow-up on the status of the matter. In reply by email, on 19 July 2017, MDW Law advised that the Health Care Complaints Commission referred the matter to the Medical Council of NSW. It added that a meeting with the Medical Council of NSW would be held on 25 July 2017, following which it would provide an update.
On 7 September 2017, Turks Legal sent a further email to MDW Law seeking a status update.
On 8 September 2017, the Medical Council of New South Wales provided the outcome of the complaint. The complaint made to the Health Care Complaints Commission was considered by the Council’s Performance Committee. The Committee considered that the medical practitioner’s treatment of the deceased the day prior to his death appeared to have been appropriate. However, the Committee was critical of the medical practitioner for not adequately documenting her assessment and treatment of the deceased.
On 11 September 2017, MDW Law replied to Turks Legal’s email of 7 September 2017. It advised of the outcome of the investigation by the Medical Council of NSW. It also advised that it anticipated that it would advise of its client’s position shortly and following a conference with its counsel.
On 21 September 2017 and 16 November 2017, Turks Legal requested a copy of the documents received from the Medical Council of NSW. Turks Legal left a telephone message with MDW Law on 8 December 2017 and sent a further follow-up email on 21 December 2017. No response was received.
On 19 January 2018, Turks Legal sent MDW Law an email seeking advice as to whether the deceased estate sought to pursue the work injury damages claim. On 2 February 2018, MDW Law responded advising that it would be in a position to respond shortly.
On 14 August 2018, Turks Legal sent a further email to MDW Law noting the delay in pursuing the claim and seeking advice as to whether the work injury damages file could be closed. A follow-up email was sent to MDW Law on 21 August 2018.
On 22 August 2018, MDW Law replied to Turks Legal’s email of 21 August 2018 stating “I confirm that you will hear from us shortly”. No further correspondence from MDW Law was received.
On 4 October 2018, Turks Legal filed an Application to Strike Out a Pre-Filing Statement (the Application).
On 19 November 2018, MDW Law filed a reply to the Application.
On 25 November 2018, MDW Law wrote to the Commission seeking to adduce further evidence. The evidence sought to be adduced is already before me. Therefore, it is unnecessary to consider that application further.

LEGISLATION

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

WORKERS COMPENSATION NOMINAL INSURER’S SUBMISSIONS

The applicant defendant submits that the pre-filing statement served on 21 May 2015 should be struck out pursuant to s 151DA(4) of the 1987 Act. It makes this application pursuant to s 151DA(3) of the 1987 Act.
The applicant defendant provides a chronology of events, regarding exchanges between the parties about the future conduct of the work injury damages proceedings. Despite frequent follow up, the applicant defendant states that no action has been taken by the deceased’s estate to prosecute the work injury damages claim since his death in September 2015.

THE DECEASED ESTATE’S SUBMISSIONS

Mrs Malikourtis provides a chronology of events, with a focus on the complaint about the deceased’s medical treatment and the outcome of that complaint issued by the Medical Council of NSW.
Mrs Malikourtis submits that the deceased estate is awaiting the preparation of an expert report in respect of the claim for death benefits. As a result, the deceased estate “has not sought to finalise the work injury damages claim should it create an estoppel or otherwise prejudice and/or extinguish the rights of the Estate and/or the dependents of the deceased.” She submits that this is particularly relevant in the context of “the rather complex prospective action in respect of medical negligence.” There is an inherent overlap of factual and legal matters, including but not limited to the issue of causation. She also submits that, until such time as satisfactory medical evidence is at hand, it would be premature to finalise the work injury damages claim.
Mrs Malikourtis also submits that attempts have been made to ascertain expert evidence, including “[c]onferences with Counsel (Richard Royle) on 14 December 2016, conferences with counsel (Hugh Somerville), discussions with Associate Professor John Raftos, conferences with Dr John Vinen on 28 April 2017 and 30 April 2017, conference with Associate Professor Michael Kennedy on 25 June 2018.”
She further submits that there has been delay in her solicitor receiving instructions and conveying advice, due to her continuing grief.
Mrs Malikourtis finally submits that it is anticipated that an expert report from Associate Professor Michael Kennedy will be received in early December 2018.

DISCUSSION

There is no dispute that the defendant claimant satisfies the threshold under s 151H of the 1987 Act, to pursue a work injury damages claim.
A claim for work injury damages must be brought within three years after the date of injury, except with leave of the court.[1] However, time may be suspended for one of the reasons set out in s 151DA of the 1987 Act. Section 151DA(1)(b) of the 1987 Act suspends time for the purposes of s 151D while a pre-filing statement in respect of the claim remains current.
[1] The 1987 Act, s 151D.
There are no impediments presented by s 151DA(3) or (4) of the 1987 Act to the Application being determined at this time. More than six months have elapsed after the applicant defendant served the pre-filing defence.
There are sound policy reasons for the inclusion of s 151DA(3) in the 1987 Act. The provision ensures that the parties have sufficient time to finalise the pre-litigation phase of the proceedings.[2] It also ensures that there is a degree of certainty to the process and enables the parties to explore resolution and/or mediation of the claim before embarking on litigation.
[2] Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108.
On 4 October 2012, the deceased was certified by Dr James Bodel, orthopaedic surgeon, with 25% whole person impairment in respect of the left hand. However, it was not until 21 May 2015 that Mr Malikourtis’ then solicitor served a pre-filing statement on the applicant defendant. For the purposes of s 151D of the 1987 Act, time stopped running when the pre-filing statement was served.[3]
[3] The 1987 Act, s 151DA(1)(b).
Before Mr Malikourtis could commence court proceedings for the recovery of work injury damages, he was required to refer the claim for mediation.[4] Following receipt of the applicant defendant’s defence to the pre-filing statement, the deceased’s then solicitors made an application for mediation of the dispute.
[4] The 1998 Act, s 318A.
On 2 October 2015, Mediator Ettinger was appointed to mediate the work injury damages dispute. However, the mediation did not proceed because the deceased died on 6 September 2015.
Since the deceased’s death, Mrs Malikourtis as executrix of the deceased estate has pursued enquiries about the possibility of commencing medical negligence proceedings. These inquiries have been delayed by proceedings with the Health Care Complaints Commission and the Medical Council of NSW. Those proceedings concluded on 8 September 2017.
Since 8 September 2017, Mrs Malikourtis has made attempts to obtain expert evidence. On 25 June 2018, the deceased estate’s lawyer had a conference with Associate Professor Michael Kennedy for the purpose of obtaining a medical expert report to identify any causal connection between the crush injury in 2012 and the deceased’s death. She submits that that report will be provided in early December 2018. I accept that submission.
Mrs Malikourtis also submitted that there has been delay in her solicitor receiving instructions and conveying advice to the applicant defendant because of her continuing grief. It is understandable, in the circumstances, that Mrs Malikourtis has been struggling with a grief reaction to her husband’s death and would experience difficulty providing instructions in a timely way.
Whilst the potential overlap between the injuries sustained in the workplace on 22 February 2012 and the events leading to the deceased’s death on 6 September 2015 is somewhat obscure, I am satisfied that Mrs Malikourtis is taking active steps to prosecute the work injury damages claim. Mrs Malikourtis should be given the opportunity to assess Associate Professor Kennedy’s advice before reaching a concluded view on whether to proceed with the work injury damages claim. However, I remind her that, if steps are not taken to prosecute the claim in a timely fashion following the receipt of Associate Professor Kennedy’s opinion, it remains open to the applicant defendant to file a fresh application to strike out the pre-filing statement.
In the circumstances, the Application to strike out the respondent claimant’s pre-filing statement is dismissed.

DECISION

The Application to strike out the respondent claimant’s pre-filing statement is dismissed.

Judge Keating

President

5 December 2018