Hogan v Albury Wodonga Health (NSWDC 2025)

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Key Takeaways

When determining whether a statement of claim is materially different to a pre-filing statement, the Court has confirmed:

• A different mechanism of injury, or an accident occurring in substantially different circumstances would be a materially different pleading.
• A pleading of a different cause of action would be a materially different statement of claim.
• Raising a completely new allegation as to the conduct of the employer would be a materially different pleading.

Brief Facts

The worker, a senior nurse, pursued a work injury damages claim seeking damages in negligence for psychological injuries said to arise from the employer’s workplace. Proceedings were commenced in the District Court of NSW.

The employer filed a notice of motion seeking to strike out the worker’s statement of claim on the basis that it was materially different to the proposed statement of claim that formed part of the pre-filing statement. It was accepted that vicarious liability was referenced in both pleadings.

The employer submitted that the reference to ‘vicarious liability’ in the pre-filing statement reflected definitions in the Workers Compensation Act 1987, and not a separate pleading of vicarious liability relating to the conduct of visiting medical officers as outlined in the statement of claim. The worker submitted that inclusion of the words ‘vicarious liability’ in both pleadings expressly denoted a reliance on vicarious liability as opposed to direct liability.

Judgment

Judge Dicker was satisfied a distinction was made between direct liability and vicarious liability in both pleadings. Taking into account the purpose behind the legislation, he concluded that ‘the two pleadings do not raise a different mechanism of injury, a different cause of action, or fundamentally different facts’.

He found there to be no material difference between the pre-filing statement and the statement of the claim, and the notice of motion was dismissed. The worker was therefore able to proceed with their work injury damages claim.

Implications

Many statement of claims filed in the District Court differ slightly to the proposed pleadings served in the pre-filing process. Employers and insurers need to carefully review statement of claims filed in work injury damages claims, to determine whether the pleadings are materially different to the pre-filing statement.

Not just any difference will give rise to the application of section 318. Whether there is a material difference between the two documents will depend on the facts of each case.

If there is no material difference between the two pleadings, any application to strike out of the statement of claim under this section will be unsuccessful.