Workers Compensation Nominal Insurer v England
[2011] NSWWCCPD 41
•5 August 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||||
| CITATION: | Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41 | ||||
| APPLICANT SECOND DEFENDANT: | Workers Compensation Nominal Insurer | ||||
| RESPONDENT CLAIMANT: | Brett Howard England | ||||
| RESPONDENT FIRST DEFENDANT: | Rodney Coombes trading as R J & M K Coombes (in liq) | ||||
| FILE NUMBER: | 3773/11 | ||||
| DATE OF DECISION: | 5 August 2011 | ||||
| SUBJECT MATTER OF DECISION: | Application to strike out pre-filing statement; s 151DA of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Applicant Defendant: | DLA Piper Australia | |||
| Respondent Claimant: | Slater & Gordon | ||||
| Respondent 2nd Defendant: | Denis Edwards & Associates | ||||
ORDERS MADE ON APPLICATION: | Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s pre-filing statement is struck out. No order is made as to costs of this application. | ||||
BACKGROUND TO THE APPLICATION
This is an application made by the Workers Compensation Nominal Insurer pursuant to the provisions of s 151DA of the Workers Compensation Act 1987 (the 1987 Act) seeking an order that the respondent claimant’s pre-filing statement, undated, served on 23 May 2009, be struck out.
Mr England was employed by the first defendant, Rodney Coombes trading as R J & M K Coombes (Coombes) as a carpenter.
On 24 May 2006, Mr England was assaulted by a co-worker and suffered injuries to his face and left eye.
The employer, Coombes, was uninsured for workers compensation purposes at the time of the assault. Mr England has pursued his entitlements against the Workers Compensation Nominal Insurer (the Nominal Insurer).
Mr England’s claim for compensation was accepted by the Nominal Insurer and payments were made accordingly.
Mr England brought a claim for lump sum compensation pursuant to s 66 and s 67 of the 1987 Act. That claim was resolved on 4 July 2008 on the basis that Mr England had suffered a 17 per cent whole person impairment. Mr England and the Nominal Insurer entered into a complying agreement to that effect.
Particulars pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) were provided by Mr England to the Nominal Insurer on 25 February 2009.
Mr England’s pre-filing statement was served under cover of a letter dated 23 May 2009 and received by the Nominal Insurer on 19 June 2009. Mr England’s pre-filing statement alleged injuries to his head, face and left eye arising from the incident on 24 May 2006.
The Nominal Insurer served a pre-filing defence under cover of a letter dated 30 July 2009. The pre-filing defence was also served on the solicitors representing the interests of Coombes.
Mr England lodged an application for mediation on 13 August 2009 and served a sealed copy of the application under cover of a letter dated 14 August 2009.
Mr England’s work injury damages claim proceeded to mediation on 21 December 2009. The matter was not resolved and final offers made by the parties were duly noted. A certificate of mediation outcome was issued by this Commission on 24 December 2009.
On 4 June 2010, the Nominal Insurer’s legal representatives wrote to Mr England’s lawyers, noting that a statement of claim had not been received and evincing an intention to strike out the pre-filing statement.
On 23 September 2010, the solicitor for the Nominal Insurer again wrote to Mr England’s lawyers, indicating an intention to apply to strike out the pre-filing statement. The claimant’s consent to the application was sought, but was not forthcoming.
On 3 December 2010, a third letter was forwarded to Mr England and to Coombes’s solicitors concerning the proposed application to strike out the pre-filing statement.
The claimant has taken no significant steps to progress the matter since the failed mediation on 21 December 2009.
On 12 May 2011, an Application to Strike Out a Pre-filing Statement was lodged with the Commission by DLA Piper Australia on behalf of the Nominal Insurer.
I was not satisfied that the application had come to the attention of the first defendant, Coombes, and, in those circumstances, I issued a Direction dated 17 May 2011 in the following terms:
“The Registrar
DIRECTS that:
1.1 By 31/5/2011, the second defendant is to serve on the claimant and the first defendant a sealed copy of this Application and this direction.
1.2 By 7/6/2011, the second defendant is to lodge with the Commission a Certificate of Service (Form 11A) certifying service of the Application and this direction on the claimant and the first defendant.
1.3 By 28/6/2011, the claimant and the first defendant are to lodge with the Commission and serve on the second defendant a Notice of Opposition (Form 11F) and supporting documentation.
1.4 By 5/7/2011, the claimant and the first defendant are to lodge with the Commission a Certificate of Service (Form 11A) certifying service of the Notice of Opposition (Form 11F) and supporting documentation.
1.5 By 12/7/2011, the second defendant is to lodge with the Commission and serve on the claimant and the first defendant any submissions in reply.”
On 20 May 2011, the solicitors for the Nominal Insurer lodged a Certificate of Service confirming service of the Application to Strike Out a Pre-filing Statement on the solicitors for Mr England and the solicitors for the first defendant, Coombes.
Notwithstanding the terms of the Direction, Mr England did not lodge a Notice of Opposition and no submissions were received from the first defendant, Coombes.
In the absence of any opposition to the application, I caused inquiries to be made of Mr England’s solicitor, Mr Young of Slater & Gordon Lawyers. In response to those inquiries, the Commission received an email communication on 29 June 2011 from Amanda Collins, “Legal Assistant to PGL Phillip Young”, in the following terms:
“Please be advised that Mr Young has instructed that he does not intend to lodge an opposition application.”
No submissions have been received from the first defendant, Coombes, in response to the Application to Strike Out a Pre-filing Statement.
ON THE PAPERS
The Nominal Insurer submits that the application can be decided solely on the basis of the written application and any written notice of opposition lodged by the claimant. In the absence of any notice of opposition and as the application is unopposed, I am satisfied that I have sufficient information to proceed ‘on the papers’ to determine the application without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.
DISCUSSION AND FINDINGS
Section 151DA of the 1987 Act is in the following terms:
“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.”
A period of approximately 21 months has elapsed since the service of the pre-filing statement prior to the lodgment of this application. Therefore, the requirements of s 151DA(3) have been met.
Mr England was assessed by Dr Ross Mellick, who provided a report dated 24 April 2008. Dr Mellick assessed the applicant to have suffered a 17 per cent whole person impairment. As a result of that assessment, the parties entered into a complying agreement pursuant to s 66A of the 1987 Act on 4 July 2008. Therefore, the requirements of s 151DA(4) are met.
The injuries suffered by Mr England were sustained on 24 May 2006. Subject to s 151DA(1), the limitation period prescribed by s 151D of the 1987 Act expired on 24 May 2009.
The effect of s 151DA of the 1987 Act is that it suspends time for the purposes of s 151D while the pre-filing statement remains current. The pre-filing statement remains current until it is struck out by the President on the application of the defendant or withdrawn by the claimant, “whichever happens first”.
The legislation is silent as to the grounds upon which an application may be made to strike out a pre-filing statement. Sheahan P observed in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 at [11] that the legislative intention behind the introduction of s 151DA of the 1987 Act and s 318A(2) of the 1998 Act was to “facilitate the resolution of such claims, without the need to commence court proceedings, through the early exchange of information and evidence and the participation of parties in mediation”. His Honour referred to the statements by the Hon John Della Bosca MLC in his second reading speech on the Workers Compensation Legislation Further Amendment Bill (NSW Legislative Council Hansard 28 November 2001 at p 18961):
“The pre-litigation process proposed by the Bill requires the parties to exchange information early, respond promptly to offers of settlement and, wherever possible, settle matters without the necessity of filing proceedings in the court.”
At [15], Sheahan P noted:
“It is clearly not the intention of the legislature that the time within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of these provisions. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.”
I made a similar observation in Luke v McCarthy [2008] NSWWCCPD 123 at [29], noting that the policy reasons behind s 151DA(3) are to provide parties with sufficient time to finalise the pre-litigation phase of the proceedings and to also provide a degree of certainty to the process.
Factors such as the reasons for the delay and any prejudice to the defendant are clearly relevant factors in the exercise of the discretion under s 151DA(3).
In terms of the delay, Mr England has made no attempt to provide any explanation for the delay in prosecuting his claim.
I note that Mr England has been legally represented at all material times and I infer that he has been informed of the existence and the effect of s 151DA. Mr England’s continuing failure to prosecute his claim against a background of having been alerted on several occasions to the risk of facing an application to have his pre-filing statement struck out and in the face of a deliberate decision to offer no resistance to the application are powerful factors in favour of granting the application sought (Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104; 54 NSWLR 207).
The Nominal Insurer submits that it is prima facie prejudicial to it to allow the continuation of Mr England’s action.
The Nominal Insurer further submits that, although it has conducted an investigation and has served statements in its pre-filing defence, this is not a complete answer to the assertion of prejudice.
The Nominal Insurer submits that it was informed on 8 June 2010 by the solicitors for Mr England that Alex Coombes (the plaintiff’s alleged assailant) was killed in a motor vehicle accident. In view of that fact and the matters previously referred to, the Nominal Insurer submits that it will suffer significant presumptive and actual prejudice in relation to the primary facts concerning the claimant’s allegations of injury in 2006, which prejudice will affect its defence of the claim.
I accept the Nominal Insurer’s submission that the delay in prosecuting the claim not only results in presumptive prejudice to it, but, in view of the death of Mr Coombes, actual prejudice has been demonstrated.
No attempt has been made by Mr England to persuade the Commission to the contrary. He has apparently taken a deliberate decision, with the benefit of legal advice, to offer no opposition to the Nominal Insurer’s application.
In the circumstances, I consider that, in the exercise of my discretion, the application should be granted.
DECISION
Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s pre-filing statement is struck out.
COSTS
No order is made as to costs of this application.
Judge Keating
President
5 August 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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