ARTICLE
17 April 2024

Case summary – Marijana Ljubicic v Heat and Control & Anor

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Carroll & O'Dea

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Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
Difficulties which can arise when an employer and a third party tortfeasor are sued in respect of a workplace accident.
Australia Litigation, Mediation & Arbitration
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Carroll & O'Dea Lawyers ran the successful application on behalf of the Plaintiff in the Supreme Court of NSW.

The case before his Honour Cavanagh J reveals the real and substantial difficulties which can arise when a Plaintiff sues both an employer and a third party tortfeasor in respect of a workplace accident pursuant to the Civil Liability Act 2002 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM"), the latter placing an obligation on the Plaintiff to undertake certain pre-filing engagement and disclosures prior to the commencement of Court proceedings.

These difficulties are further highlighted in complex cases, such as the present case, where ongoing discovery is required from the employer and third parties to obtain and finalise expert opinion after the service of a pre-filing statement ("PFS") and in circumstances where such evidence is not reasonably available to the Plaintiff and where reasonable steps had been undertaken to obtain this evidence, to no avail.

Most importantly, this case contains extremely helpful interpretation of s318 of the WIM. This section has often served as a 'guillotine' to prohibit the admission of evidence or amendments to pleadings after the service of the PFS.

The present case revealed a set of circumstances which avoided this guillotine from falling.

A Brief Overview of the Circumstances

The Plaintiff brought a case in damages against her employer, George Weston Foods Pty Ltd ("GWF"), for injuries sustained in the course of work on 10 June 2018, when a machine supplied and manufactured by a third party, Heat and Control Pty Ltd ("H&C"), exploded on the employer's premises.

The Plaintiff filed a Statement of Claim against H&C on 24 December 2020 in the Supreme Court of NSW and subsequently joined GWF to the proceedings on 21 July 2022. H&C filed a cross-claim against GWF.

Prior to joining GWF to the Court proceedings and serving the PFS, the Plaintiff sought the expert opinion of Mr Luke Murphy, Engineer, to provide a report, inter alia, as to the cause of the explosion.

Mr Murphy issued a "preliminary report" within which he confirmed that he could not provide a final view as to causation without further information being provided to him given that the machine in question had been modified since the explosion. A list of further information/documents required by him was contained in the preliminary report.

The Plaintiff issued extensive subpoenas in the Court proceedings to obtain the further information required by Mr Murphy. A significant volume of documents were produced and successively provided to Mr Murphy, yet he required further documents to finalise his opinion.

Given that the Plaintiff was already outside of the three year limitation period, she subsequently served a PFS on 24 January 2022 on GWF, effectively suspending the limitation period.

The PFS did not include or disclose the preliminary report of Mr Murphy, nor did it attach any expert report on liability.

GWF subsequently served a Reply to the PFS ("the Reply") on 4 March 2022, which attached documents not previously produced by it or any third parties, including two statements from GWF employees which went to the issue of causation for the explosion.

A final letter of instruction was provided to Mr Murphy on 26 May 2022 which included these statements and additional information served by GWF in the Reply and Mr Murphy issued a final report dated 5 October 2022 as to the cause of the explosion ("the final report of Mr Murphy").

The Application Made by the Plaintiff

The Plaintiff sought leave to amend the Amended Statement of Claim to plead particulars of negligence in line with the final report of Mr Murphy pursuant to r 64 of the Uniform Civil Procedure Rules ("UCPR") and/or s 318(1)(a) of the WIM and to rely on the final report of Mr Murphy pursuant to s 318(1)(d) of the WIM.

Naturally, in light of s318, the Application was resisted by the GWF.

The third party tortfeasor, H&C, did not oppose the application and his Honour, observed that "if leave is not granted, the Plaintiff will be pursuing different cases against each Defendant and it will not be permitted to rely on the expert report against the second Defendant".

The Court's Determination

With respect to the final report of Mr Murphy being admitted, his Honour confirmed that the Court must not grant leave unless it is satisfied of both matters set out in subs 318(2)(a) and (b) are satisfied, specifically that:

  1. the material concerned was not reasonably available to the party when the Pre-Filing Statement or defence was served, and
  2. the failure to grant leave would substantially prejudice the party's case.

His Honour did not accept the Plaintiff's submission that 318(2)(a) was established by the mere fact that the final report of Mr Murphy was obtained after the service of the PFS.

Rather, his Honour stated the test was as follows:

"64. As such, on the proper construction of subss 318(1) and (2), it is not sufficient to merely look at the date of the report. It is necessary to consider all of the circumstances leading up to the preparation of the report and, specifically, when the material relied upon by the expert was reasonably available.

65. The phrase "reasonably available" must be given meaning. It does not merely mean "available". "Reasonably available" must be read in the context of the purposes of the WIM Act and, in particular, s 318. The party seeking to rely on the report must have taken reasonable steps to obtain it at the relevant time. The test is not simply whether the report could have been obtained. The test is whether there were reasonable steps which could have been taken, having regard to the material available in order to obtain the report".

His Honour accepted that not all of the material relied upon by Mr Murphy was reasonably available to the Plaintiff at the time of the service of the PFS and this material included the evidentiary statements relied upon by the GWF contained in the Reply.

For self-evident reasons, his Honour was also satisfied that the failure to grant leave would substantially prejudice the Plaintiff's case.

Having granted the Plaintiff leave to rely upon the final report of Mr Murphy in accordance with s 318(2) of the WIM, his Honour found that there was no other reason to not grant leave to the Plaintiff to file the Further Amended Statement of Claim.

Conclusion

Not all cases are as complex as the present case and if possible, all expert evidence should be obtained and served at the time of service of the PFS to avoid such applications from having to be made.

The test enunciated by his Honour at paragraphs 64 and 65 of his judgment places a high threshold to establish when seeking the Court's leave to admit evidence or amend pleadings pursuant to s318 of the WIM. Whilst not insurmountable, the test further crystallises the view that s318 should be viewed as a 'guillotine' unless in exceptional cases where the evidence was not reasonably available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
17 April 2024

Case summary – Marijana Ljubicic v Heat and Control & Anor

Australia Litigation, Mediation & Arbitration

Contributor

Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
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