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Providing Particulars in 151Z Recovery Claims By Michael Lamproglou | June 2009 Area of Expertise | 151Z Recoveries

On 30 March 2009, the NSW Court of Appeal put an end to the notion that employers who are pursuing 151Z recovery claims should provide particulars that are ‘analogous to’, ‘in the nature of’ or ‘in accordance with’ Part 15.12 of the Uniform Civil Procedure Rules 2005 in State of New South Wales (Ambulance Service of NSW) v McKittrick1.

Summary Part 15.12 of the Uniform Civil Procedure Rules 2005 was increasingly being relied upon by negligent third parties, their insurers and their solicitors to seek particulars in 151Z recovery actions. The District Court was also making orders that employers provide answers to such requests as part of the case management of proceedings. This has been held to be inappropriate in a s151Z(1)(d) claim.

Who Does This Impact? Employers, Insurers and Scheme Agents who are seeking to recover compensation payments.

What Action Should Be Taken? Refuse any requests to provide particulars ‘in accordance with Part 15.12’ and object to any orders proposed to be made of this nature. This decision should be referred to when responding to the standard requests for particulars by the representatives of third parties, that are essentially the same as the requests they would send to injured workers’ solicitors.

Background Todd McKittrick was an ambulance officer who was injured when a vehicle collided with the rear of his ambulance. Mr McKittrick was attending to a patient in the back of the ambulance at the time. He lodged a claim for workers compensation and received payments of compensation in respect of his injuries. The Ambulance Service, as his employer, commenced recovery proceedings claiming an indemnity under s151Z(1)(d) against the owner and driver of the vehicle that collided with the ambulance. After some correspondence between the legal representatives, the defendant applied to the Court for orders that the employer provide further answers to its request for particulars regarding past economic loss. On 12 June 2008, Judge Johnstone of the District Court delivered judgment making orders including: 7. The plaintiff is to provide particulars of economic loss in accordance with r 15.12 of the UCPR that are within its knowledge as a plaintiff in a representative capacity and not extending to matters solely within the knowledge of the worker, to be provided by 17 July 2008.

The employer appealed on the basis that an order made in these terms (referring to Part 15.12) was inappropriate.

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Providing Particulars in 151Z Recovery Claims by Michael Lamproglou

Argument The employer submitted that the obligation to provide particulars under Part 15.12 only applies to claims for damages for personal injury. Therefore, Judge Johnstone had erred by extending the application of that part to recovery proceedings. It is well established that s151Z(1)(d) provides the basis for a statutory claim for indemnity which is not a claim for damages: see Westpac Banking Corporation v Tomassian2. The employer also contended that as the defendant sought to limit the employer’s indemnity to the amount of damages that would have been payable to the worker, then it should bear the onus of establishing the amount of those damages. It follows that the employer would not be required to provide particulars of the worker’s notional damages because it does not bear the onus of proving such damages.

The Decision The Court of Appeal comprised Justices Beazley and Basten who allowed the appeal finding that: 1.

Part 15.12 of the UCPR does not apply to s151Z(1)(d) proceedings. They believed aspects of that rule were inapt for this type of proceedings. Therefore, there is a danger in ordering particulars to be provided ‘in accordance with’ the rule as though it were an adequate and appropriate template for particulars in s151Z(1)(d) proceedings;

2.

A party who is ordered to provide further particulars that are ‘within its knowledge’ will be unable to know precisely what is required to comply with the order. That is particularly so where the party’s ‘knowledge’ of matters is not identified; and

3.

To obtain an order for further particulars, the defendant must demonstrate the potential prejudice of having to prepare for trial and defend a case, the details of which are not sufficiently revealed in the pleadings. This had not been established on the evidence.

The employer’s submission on who bears the onus was rejected by the Court which referred to a number of previous decisions where it was assumed that the onus rests with the employer.

Are Employer’s acting in a ‘Representative Capacity’? The Court also stated that an employer in a recovery claim was not acting in a representative capacity to anyone (i.e. a worker, a deceased worker’s estate etc). The phrase is derived from paragraph 29 of the Court’s earlier decision in Allianz Australia v Newcastle Formwork3 where it is referred to as an example. The Court of Appeal noted that Judge Johnstone’s reference to ‘as a plaintiff in a representative capacity’, should be omitted as it is inaccurate.

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Providing Particulars in 151Z Recovery Claims by Michael Lamproglou

Are Defendants Prejudiced? Defendants in s151Z(1)(d) proceedings claim that they are prejudiced because they do not have access to the injured worker and should therefore be entitled to particulars in accordance with Part 15.12. The Court answered this as follows: 1.

An employer cannot be required to particularise a case of which it is ignorant;

2.

It is clear that Part 15.12 extends beyond that which might in the past have been thought to be sufficient particulars of a pleading by way of statement of claim; and

3.

The defendant has other avenues of inquiry available to it, including discovery and interrogatories.

The Position Now Refuse any requests to provide particulars ‘in accordance with Part 15.12’. Further, be wary of providing any responses to requests for particulars which call for information about the worker, unless the worker has previously provided this information to you. Representatives of negligent third parties should be referred to this decision when you receive their precedent request for particulars concerning notional damages. Their continual reference to earlier decisions such as Jawa Group Pty Limited v Tatana,4 and their misinterpretation of Allianz Australia v Newcastle Formwork,5 to seek responses to requests for particulars are no longer applicable.

End Notes 1. 2. 3. 4. 5.

[2009] NSWCA 63 (1993) 32 NSWLR 207 [2007] NSWCA 144 Garling DCJ, 12 April 2005, unrep [2007] NSWCA 144

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Providing Particulars in 151Z Recovery Claims by Michael Lamproglou

For more information, please contact:

Michael Lamproglou Senior Associate T: 02 8257 5723 michael.lamproglou@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property

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Providing Particulars in 151Z Recovery Claims