Key Takeaways

In this matter, Member Harris determined that particular matters relevant to a s11A defence could not be relied upon given that they were not sufficiently particularised in a s78 notice.

The matter highlights the importance of identifying all relevant particulars to a defence, especially if a respondent seeks to rely on s11A of the Workers Compensation Act 1987 (NSW) (the Act).

Brief Facts

The worker suffered psychological injury in the workplace deemed to have occurred on 19 September 2017.

By way of a dispute notice dated 19 March 2018, the worker’s claim was initially declined under s4 and/or s9A of the Act. However, in a subsequent notice, dated 7 July 2021, a further dispute was raised under s11A of the Act. The respondent submitted that the worker’s injury was wholly or predominantly caused by the reasonable action taken by the employer in respect of performance appraisal, transfer and/or discipline.

The matter was listed for teleconference before a Member of the Personal Injury Commission (PIC) on 14 July 2021 who disqualified herself from further participating in the matter. The matter was set down for conciliation/arbitration before Member John Harris on 7 September 2021.

At the conciliation/arbitration, counsel for the respondent described the particulars of the s11A defence. The worker, through his representatives, accepted that several of the particulars fell within the parameters identified in the s78 notice, but objected to a number of particulars, including letters and meetings pertaining to disciplinary and performance appraisal matters, as being outside the parameters of the s78 notice. The worker submitted that he had prepared his case based on the disputes raised in the s78 notice. To allow further disputes would require the worker to re-prepare his case, which would delay the proceedings.

Member Harris was left to determine whether the particulars reformulated by counsel fell within the scope of the s11A defence referred to in the s78 notice and if not, whether leave should be granted to allow the respondent to raise the further issues.

Judgment

Member Harris referred to the decision of DP Roche in Mateus v Zodune Pty Ltd (NSWWCCPD 2007) as a leading authority regarding obligations imposed on insurers by s74 (now s78) of the Act. DP Roche indicated that the dispute notice must state in plain language, in the body of the document, the reasons the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.

Member Harris also referred to the decision of DP Roche in Gray v Busways Gosford EMP Pty Ltd (NSWWCCPD 2009), detailing the obligations of employers in properly particularising a s11A defence. DP Roche stated [at 6]:

‘If an insurer seeks to rely upon section 11A(1) of the Workers Compensation Act 1987, full and proper particulars of the specific part of that section must be provided. There are seven different parts to section 11A(1) and a worker is entitled to know precisely which part the insurer relies upon. No proper particulars have ever been provided in the present case and the worker has been left to guess as to which part of section 11A(1) allegedly defeats her claim. That is a totally unsatisfactory situation that should not occur.’

Member Harris considered the s78 notice supplied by the respondent. He noted that the fact that documents were attached to the notice does not provide particulars of other actions. Member Harris stated that if there are other documents attached outside the particulars of the notice, then it is simply guesswork whether the respondent is relying on other documents to support other particulars. Member Harris rejected the respondent’s submission that its s11A defence, as set out by the counsel for the respondent at the conciliation/arbitration, is in accordance with the s78 notice.  

Member Harris also denied an application for leave to amend the defence pursuant to s289A of the Act. Member Harris ordered that the issues pursuant to s11A of the Act be limited to the matters raised in its s78 notice.

Implications

This case highlights the importance of drafting sound s78 notices that properly identify the reasons for declining a claim. This is particularly relevant to s11A defences. Failure to provide adequate particulars only adds to the complexity, inefficiencies and unnecessary delays in disputes. It may also mean that the respondent is unable to rely on matters relevant to the defence should the matter proceed to determination.

Member Harris referred to the particulars drafted by the respondent’s learned counsel, set out at paragraph 16 of the Certificate of Determination, as an excellent example of a precise and concise pleading which would place a worker on notice as to the substance of the defence.