Not So Particular About Particulars by Michael Lamproglou | July 2007 Area of Expertise | 151Z Recoveries
The ongoing debate about whether a plaintiff employer must provide answers to particulars in a Section 151Z recovery claim was recently clarified by the NSW Court of Appeal in Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144. The decision justifies the stance taken by plaintiff employers that they are only obliged to provide the best particulars they can, that are reasonably within their knowledge.
Background Kenneth Sheard, an employee of Newcastle Formwork, suffered injuries in a motor vehicle accident while on his way home from work. He received payments of compensation for those injuries. Newcastle sought to recover the compensation paid pursuant to Section 151Z(1)(d), and commenced proceedings against the driver of the vehicle at fault. The CTP insurer requested particulars (including documents) they said were “necessary to enable an assessment of the worker’s entitlement to damages”. The request referred to the District Court decision of Judge Garling in Jawa Group Pty Ltd v Tatana. In Jawa, Judge Garling found that particulars in Section 151Z(1)(d) claims must be provided “analogous to those which would be required in a damages claim made by a injured worker”. Part 15 Rule 12 of the Uniform Civil Procedure Rules sets out the particulars that must be given in a claim for damages brought by an injured worker, not a recovery claim under Section 151Z. Newcastle did not respond to the request and the CTP insurer filed a Notice of Motion seeking a response. The application was heard by Judge Hughes in the District Court who dismissed the Motion on the basis that the particulars sought were wide ranging and sought answers that were not in the knowledge of the employer, Newcastle Formwork, but in the knowledge of the worker. The CTP insurer appealed.
Court of Appeal The Court of Appeal heard the CTP insurer’s application for leave to appeal, and the appeal arguments, at the same time and made the following comments: •
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Judge Hughes was correct in his decision because the particulars requested were excessive. Part of that excess was the fact that some of the requests were likely to have been only within the worker's knowledge.
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It was common ground that Rule 15 Part 12 did not apply to a recovery claim under Section 151Z(1)(d) (as it is not a claim for damages).
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Given the general nature of particulars required to be given under the Uniform Civil Procedure Rules (Part 15 Rule 1(1), 9 and 10), Newcastle should provide answers to particulars to allow the CTP insurer to know the case that it has to meet. That includes advising the type of damages the worker could have claimed had he/she sued the negligent driver.
The Court of Appeal dismissed the application for leave to appeal and ordered the CTP insurer to pay Newcastle’s costs.
Implications Allianz v Newcastle is a welcome development for plaintiff employers who have increasingly been bombarded with improper and excessive requests for particulars relying upon the decision of Judge Garling in Jawa v Tatana. Therefore, Judge Garling’s decision in Jawa Group Pty Ltd v Tatana is not authority that a request for particulars, similar to one that would be requested in a worker’s damages claim, must be answered; as the CTP insurer had asserted. The decision confirms that a Section 151Z plaintiff employer must indicate the type of damages that an injured worker would recover if he/she had sued the responsible third party. It is now clear that a plaintiff employer is only obliged to provide the best particulars that it can. Therefore, a party acting in a representative capacity (such as an employer in a Section151Z recovery) may only be able to give general particulars. Overall, the application of the above principles in a Section 151Z(1)(d) claim should ensure that proper requests for particulars are now made and appropriate answers provided that are reasonably within the plaintiff employer’s knowledge.
For more information, please contact: Michael Lamproglou Senior Associate T: 02 8257 5723 michael.lamproglou@turkslegal.com.au
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