Case: Saville v Insurance and Care NSW [2022] NSWSC 1126

Date of Decision: 10 March 2022

Before: Supreme Court of New South Wales, Rothman J

Background

The Plaintiff was an employed practice nurse for Biripi Aboriginal Medical Corporation from 2011 to 2016. The Plaintiff was dismissed from her employment in June 2015 but on application to the Fair Work Commission the dismissal was held to be unfair, and her employment was reinstated.

The Plaintiff alleges she was sexually assaulted in the workplace in 2015 which she reported to police in January 2016. The Plaintiff ceased her employment in March 2016. The Plaintiff lodged a workers compensation claim in February 2016 against her employer’s workers compensation insurer, GIO, the third Defendant who originally denied the claim four separate times up to 2018. The Plaintiff brought proceedings against her employer in the Personal Injury Commission wherein the Plaintiff was paid compensation by GIO in March 2021.

The Plaintiff raised a complaint with insurance and Care NSW (icare), the first Defendant in December 2017.

The Plaintiff alleges that she contacted the State Insurance Regulatory Authority (SIRA) on eight separate occasions regarding her compensation claim between September 2015 and April 2021.

Proceedings

The Plaintiff filed a Statement of Claim in the Supreme Court in June 2021 seeking $1 million in damages for psychological injury and economic loss caused by the negligence and/or statutory breach of the Defendants. The Plaintiff was unrepresented throughout the proceedings and seemingly failed to file a notice of motion for a referral for pro bono legal representation by the Registrar.

With respect to icare, the Plaintiff claimed that it was negligent in investigating her workers compensation claim and breached its statutory duty to monitor GIO. With respect to SIRA, the Plaintiff claimed it was negligent in its failure to supervise GIO, failure to respond in a timely fashion to her complaints to icare, breach of statutory duty to supervise the handling of her claim by GIO and failure to ensure GIO complied with the standards set out in the Workers Compensation Act 1987. With respect to GIO, the Plaintiff claimed it was negligent in investigating her claim and breached its statutory duty by failing to comply with SIRA’s standards.

In their notice of motion, both icare and SIRA submitted that the Plaintiff’s claim did not disclose a reasonable cause of action. Both submitted that the alleged duty of care and statutory duty did not exist, the Plaintiff’s claim did not rise to the threshold set by section 43A of the Civil Liability Act 2002 (the CLA) and the claim did not satisfy the requirements of section of the CLA.

In its separate notice of motion, GIO made similar submissions and further submitted that there is no tortious or contractual duty imposed upon a workers compensation insurer to act in good faith nor did the Statement of Claim disclose a causal relationship between the alleged breaches and the loss suffered. GIO submitted that the claim itself was an abuse of process and frivolous and thus the Court ought to dismiss the proceedings.

The Plaintiff alleged that icare continually denied her claim, failed to properly investigate the claim, engaged in victim blaming and was biased towards the alleged perpetrator. The Plaintiff’s allegations towards SIRA and GIO were more tempered claiming that they failed to take action regarding her complaints.

Decision

Rothman J found that the Plaintiff’s submissions did not deal with the basis upon which liability arises either in negligence or for breach of statutory duty, she had not sought to overcome the strict requirements imposed by section 43 of the CLA. Further, his Honour noted that the Plaintiff did not distinguish between the injury caused by the conduct of her employer and the Defendants.

His Honour described the Plaintiff’s pleadings as embarrassing and was not confident that her loss was caused by the alleged conduct of the Defendants. His Honour acknowledged that the claim would test the outer limited of the law of negligence and breach of statutory duty but conceded the Plaintiff did not have the means to afford legal representation to conduct proceedings in a manner that allows the Defendants to meet the case.

However, on account of the Plaintiff being unrepresented, his Honour was not inclined to dismiss the proceedings and ordered that the Statement of Claim be struck out, that the Plaintiff had liberty to file an amended Statement of Claim, the Plaintiff was referred to the Registrar to obtain a referral for legal assistance and ordered to pay the costs of the Defendants incurred as a result of the motions.

Lessons for Employers & Insurers

This decision does not represent the finale of this matter but perhaps demonstrates the legal complexities of the workers compensation system from a worker’s perspective and emphasizes the need for all workers to have access to their own legal advice.

Evidently, in bringing these proceedings the Plaintiff has caused herself significant financial distress, delayed or even extinguished her ability to progress her workers compensation claim. However, it may also represent a nexus for insurers and employers to ensure that workers are made aware of their rights before all parties are engaged in costly litigation which does not offer any solution to any involved.

From the insurer and regulator’s perspective, section 43 of the CLA provides a liability for breach of a statutory duty in connection with the exercise or failure to exercise a function owed by a public or other authority. This is qualified by section 43A of the CLA which provides that breach does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. While the standard to assert the breach is high, insurers, agents and regulators need to be mindful of the important and significant role they play in the determination and administration of claims, which must be administered reasonably.

Contributor: Chris Smith

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.