Craig v Toll Pty Limited t/as Toll Transport (NSWSC 2021)

LINK TO DECISION

Key Takeaways

This case demonstrates the complexities that abound in the NSW workers compensation legislation.

The consent of the worker to a lump sum settlement is paramount in effecting the resolution of a WPI claim, and until that claim has been settled, it is a fundamental impediment to the finalisation of a work injury damages claim.

Brief Facts

In November 2005, the worker commenced court proceedings against Toll in respect of an injury on 19 September 2002 at his workplace with Toll. In September 2007, the worker commenced further proceedings for work injury damages against Toll in respect of an injury on 4 February 2002.

Both matters were heard together. Principal judgment was delivered on 30 June 2014. The worker succeeded against Toll in both matters but obtained findings on damages which were far below what he believed reflected his true entitlement.

There was judgment in respect of the 2002 injury for the worker against Toll in the sum of $67,641 with no order for costs. In the second action, there was judgment for the worker against Toll in the sum of $75,899 with the worker to pay the defendant’s costs.

Section 280B(1) of the Workplace Injury Management and Workers Compensation Act 1998 provides:

‘An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.’

In 2005, the worker made a WPI claim for the injury on 2 February 2002. In 2006, he received an assessment of 29% WPI. However, those proceedings were discontinued. Accordingly, the WPI claim was not resolved by the time that RS Hulme AJ made orders in July 2014.

The parties tried to reach agreement and the solicitor signed a Complying Agreement for 29% WPI. The Agreement was not signed by the worker, who refused to accept the judgment. The worker returned to Toll the judgment money which was paid to him. In February 2015, Justice Hulme ordered a stay of the principal judgment until after the WPI was resolved.

The worker refused to agree to any action which would allow finalisation of the matters. He terminated the retainer of his solicitors.

In December 2020, Toll filed a Notice of Motion in the hope of bringing the matter to conclusion. This included seeking an order that the Complying Agreement, signed by the solicitor but not the worker, was binding on the worker.

Judgment

Toll sought to argue that the signing of the Complying Agreement by the worker’s solicitor was binding on the worker. His Honour disagreed, and found that the solicitor’s signature reflected only that he had provided the worker with independent legal advice and ‘did not purport to be any execution of the agreement on behalf of the (worker)’.

Of greater difficulty was the question of how to finalise the matter in the absence of any co-operation from the worker. His Honour commented:

‘I attempted to raise this with Mr Craig with a view to him either now confirming his agreement to the receipt of $75,000 in accordance with what was proposed back in 2014 or him making a further application to the Personal Injury Commission to obtain compensation before there is any extinguishment under s 151A… It was clear from his responses that his disgruntlement with what has occurred to date has resulted in a proud defiance on his part to take any step that might be seen as acquiescing in any way with what he sees as a travesty of justice.’

‘I am reluctant to proceed down the road of making orders which would bring his workers compensation entitlement to an end. Nevertheless, the position has been reached that these proceedings are now almost two decades old. It is almost seven years since the principal judgment, which was not appealed, was delivered.

‘… Accordingly, with reluctance, the only way to complete this matter is to grant declaratory relief to the effect that he has no such entitlements as referred to in s280B of the 1998 Act and that s280B does not preclude the payment to, or the receipt by, him of damages in respect of his injuries in accordance with RS Hulme AJ’s orders’.

Implications

This is an extraordinary decision made in extraordinary circumstances, and emphasises the importance of resolving WPI claims before any work injury damages proceedings are commenced.