Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:
1. WARD P: I agree with Ball JA.
2. ADAMSON JA: I agree with Ball JA.
3. BALL JA: The issue raised by this appeal is whether an employer which has failed to serve a pre-filing defence (defined below) to a claim for "work injury damages" within 42 days after receiving a pre-filing statement (also defined below) from the worker in accordance with the regime set out in Ch 7 Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) is nonetheless entitled in subsequent court proceedings to raise a defence of contributory negligence to the worker's claim.
The legislation
4. It is convenient to begin by describing the relevant legislative framework.
5. The rights of a worker to claim common law damages against an employer in respect of a work-related injury are preserved in a modified form by the Workers Compensation Act 1987 (NSW) (the 1987 Act) and the 1998 Act.
6. The 1987 Act sets out the circumstances in which such a claim may be brought and a worker's entitlements in respect of such a claim: see Pt 5 of the 1987 Act and s 60 of the 1998 Act. Section 151N(1) of the 1987 Act states that "The common law and enacted law as to contributory negligence apply to awards of damages" subject to certain exceptions set out in s 151N, none of which is presently relevant. Chapter 7 Pt 6 of the 1998 Act sets out the procedures that must be followed before a claim for "work injury damages" may be brought. "Work injury damages" is defined in s 250 of the 1998 Act to include "damages recoverable from a worker's employer in respect of ... an injury to the worker caused by the negligence or other tort of the employer".
7. Sections 315 and 316 (contained in Ch 7 Pt 6) of the 1998 Act provide:
315 Requirement for pre-filing statement before commencing court proceedings
(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Commission rules may require.
Note-
Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages.
(2) The pre-filing statement cannot be served unless-
(a) the person on whom the claim is made wholly disputes liability for the claim, or
(b) the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or
(c) the person on whom the claim is made has failed to determine the claim as and when required by section 281.
Note-
The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 78 requires notice of a dispute as to liability to be given.
316 Defendant must respond to pre-filing statement
(1) The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by-
(a) accepting or denying liability (wholly or in part), and
(b) (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Commission rules may require.
Note-
A defence can be filed after 28 days but after 28 days the claimant can refer the claim to mediation under Division 4.
(2) If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages.
Note-
If the defendant fails to respond within 42 days, the defendant is prevented from filing a defence (see section 318) and the claimant can proceed to obtain summary judgment on the question of liability. If the defendant responds to the pre-filing statement within 42 days, the matter is required to proceed to mediation under Division 4 before court proceedings can be commenced.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968e3a93d08674e6386d523)
Disclaimer: Curated by HT Syndication.
