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Infrabuild Trading Pty Ltd v Sihavong (NSWPICPD 2025)

Key Takeaways

In work injury damages (WID) claims, a defendant may apply to the Personal Injury Commission (PIC) to have a Pre Filing Statement (PFS) struck out if six months have elapsed after the defendant served on the worker a Pre Filing Defence (PFD).

When exercising its discretion to strike out an injured worker’s PFS in accordance with s151DA (3) of the Workers Compensation Act 1987 (the Act), the PIC will consider:

• whether there is evidence of Court proceedings having been commenced;
• whether there have been active steps taken by the parties to resolve the matter;
• whether the injured worker has been given the opportunity to respond to the employer’s application to strike out the PFS and failed to do so.

The policy underpinning s151DA (3) is to give the parties sufficient time to finalise all pre-litigation requirements prior to the commencement of court proceedings

The filing of a PFS is not designed to delay a WID claim by extending time indefinitely. However, the power to strike out a PFS is discretionary and a complaint of prejudice arising from an injured worker’s delay will not necessarily be persuasive.

Legislation

Section 151DA (3) of the Act provides that a defendant may apply to the PIC to have a PFS struck out by order of the President. Such an application may not be made until six months have elapsed after the defendant served on the worker a defence to the claim in accordance with s316 of the Act.

Section s151DA (4) of the Act states that the President may order a PFS to be struck out, but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the injured worker has been referred for assessment by a Medical Assessor.

Brief Facts

The worker sustained a psychological injury for which she was agreed as having 19%WPI pursuant to Consent Orders dated 13 September 2021 thereby seeing her breach the WID threshold.

The WID claim proceeded in the usual course with the worker’s solicitors serving a PFS on 11 March 2024. A PFD was served on 22 April 2024. The matter was listed for mediation in the PIC on 6 June 2024 at which the injured worker withdrew her Application for Mediation and no offers were recorded by the Mediator.

On 22 October 2024, the defendant filed an application to strike out the PFS. The defendant submitted that it would suffer prejudice by reason of the injured worker’s delay in prosecuting her claim, asserting that a PFS should not extend time indefinitely and that the claim was already well outside the three year limitation period prescribed by s151D of the Act. The defendant maintained that it had and would continue to suffer prejudice by reason of the passage of time.

In opposing the application, the injured worker submitted that she intended to proceed with her WID claim though she could not do so previously as s318 of the Act mandated that she disclose and include the evidence she intended to rely on in her PFS. Annexed to the injured worker’s submission was “other evidence” on which she proposed to rely and include in the PFS so it could be relied upon in subsequent court proceedings.

The injured worker submitted that the matter before the President was not an application for leave to commence court proceedings pursuant to s151D of the Act. The question of whether there was prejudice to the employer by her delay sat within the jurisdiction of the court. The injured worker maintained that she intended to proceed with the claim and that her delay related to gathering of further evidence which had been completed and served on the defendant.

Decision

President Phillips noted at the outset that the pre-requisites for the making of an order under s151DA (3) striking out the PFS were established, namely:

• more than six months had elapsed since the PFD was served; and
• the injured worker’s permanent impairment was fully ascertainable.

The President referred with approval to the decision of former President Keating in Luke v McCarthy (NSWWCCPD 2008) that the filing of a PFS was not designed to “park” a WID claim until a worker decides that it is opportune to proceed. To allow same would be contrary to the legislative purpose of enabling the parties to finalise the pre litigation process.

Noting that s150DA (3) established a discretionary power, President Phillips observed that the PFS in this instance was served less than 12 months prior to the application such that the delay had “not been great”. Further, the injured worker had taken some steps to progress the matter since mediation by obtaining further evidence and she had espoused a clear intention that she wished to prosecute her claim.

The President noted that the defendant had made a “broad” allegation of prejudice. Whilst accepting that contention at face value, in the opinion of the President the defendant’s submission was neither compelling nor persuasive. In so concluding, the President remarked that had the injured worker been more diligent in prosecuting her claim the defendant would have had to contend with the factual allegations made by the injured worker in any event.

In view of the above, the President declined to strike out the PFS though warned that injured workers were not permitted by the legislation to prosecute a claim “in their own good time”. It remains the responsibility of injured workers and their legal advisors to progress claims diligently.

Implications

The decision confirms the reluctance of the PIC to exercise the discretion afforded by s150DA (3) to strike out an injured worker’s WID claim even when that claim is well outside the limitation period prescribed by s151D of the Act.

On one view, the willingness of the PIC to allow an injured worker to withdraw from a mediation at which the defendant may have raised deficiencies in the worker’s case and permit the worker to obtain further evidence as part of the same PFS may place a defendant at a forensic disadvantage.