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S 318 Workplace Injury Management Act – “materially different”: particulars of negligence and foreseeability October 25, 2019

Sohailee v City Projects & Developments Pty Ltd [2019] NSWSC 1452

22 The purpose of s 318 of the Workplace Injury Act must be to ensure that claimants and employers properly participate in the pre-filing process required by the Act; that is, the claimant is required to put the defendant on notice of the particulars of his claim and the evidence that the claimant will rely on in support of the claim before commencing a work injury damages claim in court. The purpose of requiring the claimant to do that must be to assist in the process of resolution of the dispute prior to proceedings being pursued and to ensure that the employer/proposed defendant has proper, adequate and complete notice of the claim that is and will be pursued by the injured employee. The obligation to provide that notice is complimented or enforced by s 318 of the Act.

23 The expression “materially different” must be given its ordinary, natural meaning. It must be interpreted in the context in which those words appear having regard to the overall purpose of s 318(1)(a) of the Workplace Injury Act. It is not necessary or appropriate to substitute other words to give meaning to the expression. It is also important to emphasise that not just any difference will give rise to the application of s 318. The difference must be material. Whether there is a material difference between the two documents must depend on the facts in each case.

24 There can be little doubt that a pleading of 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. Further, raising a completely new allegation as to the conduct of the proposed defendant would be a materially different pleading. By that I mean that if the plaintiff asserted that the defendant did or failed to do something not raised at all, either generally or specifically, in the proposed statement of claim then that would be something which is materially different.

25 However in this matter the issue is more nuanced. The second defendant complains only of particulars of negligence being different or new. The second defendant does not assert that there is any new cause of action or that there is a new mechanism of injury. It is just that the particulars of negligence in paras 23(v), (vi) and (viii) of the amended statement of claim are materially different.

26 It may be that in some circumstances new particulars of negligence could fall within the meaning of “materially different” in s 318(1) of the Workplace Injury Act. In some circumstances, a comparison of just the particulars of negligence may lead to a finding of material difference. The issue cannot be determined merely with reference to the assertion that they are just particulars of negligence, not that Mr Sleight, who appeared on behalf of the plaintiff, made a submission in those terms.

27 The issue requires a consideration of the form of paras 23(v), (vi) and (viii) with reference back to the proposed statement of claim and then a consideration of whether there is a material difference.

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