Patrick Stevedores Holdings Pty Ltd v Workers' Compensation Regulator
[2025] QIRC 62
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- Unreported Judgment
- Patrick Stevedores Holdings Pty Ltd v Workers' Compensation Regulator[2025] QIRC 62
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Patrick Stevedores Holdings Pty Ltd v Workers' Compensation Regulator[2025] QIRC 62
Patrick Stevedores Holdings Pty Ltd v Workers' Compensation Regulator[2025] QIRC 62
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Patrick Stevedores Holdings Pty Ltd v Workers' Compensation Regulator [2025] QIRC 062 |
PARTIES: | Patrick Stevedores Holdings Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2023/119 |
PROCEEDING: | Application in proceedings |
DELIVERED ON: | 27 February 2025 |
MEMBER: | Caddie IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – INTERLOCUTORY APPLICATIONS – application to amend statement of facts and contentions – where the respondent seeks to amend their statement of facts and contentions on the last scheduled day of hearing – where the respondent seeks to plead in the alternative – where the respondent contends the amendments are necessary as they arose from appellant witness evidence at hearing – where the appellant contends the amendments are impermissible – consideration of relevant factors – leave to amend statement of facts and contentions granted. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 539 (d) |
CASES: | Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278 Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4 Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379 Bond v State of Qld & Ors (No.2) [2020] QIRC 078 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 205 Gilbert v Metro North Hospital Service [2021] QIRC 255 Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd; The Casper Trader [1992] 3 ALL ER 132 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia Pty Ltd) (1991) 217 ALR 171 May v Thomas [2008] WASCA 215 |
Reasons for Decision
- [1]Patrick Stevedores appeals a decision of the Workers' Compensation Regulator to substitute a rejection decision of WorkCover Queensland with an acceptance of Mr Michael Anthony’s compensation claim. The basis of the accepted claim is that Mr Anthony suffered from an acute stroke of the left cerebellum and spinal cord secondary to left vertebral dissection arising from the pulling of heavy chains at work.
- [2]The hearing of the substantive matter commenced on 15 October 2024 and was set to conclude 17 October 2024. On the morning of 17 October 2024, the Regulator filed an application seeking to amend their Statement of Facts and Contentions ('SOFC') and sought leave to make that application that same morning. The application was opposed by Patrick Stevedores. I issued directions to hear from the parties in relation to the leave sought.
- [3]The Regulator, who is the Respondent to the substantive application, is the Applicant in this matter. For ease I will refer to the Applicant as the Regulator and the Respondent as Patrick Stevedores throughout this decision.
- [4]Prior to hearing, the Regulator's pleadings contained in their SOFC were that the worker, Mr Anthony, suffered a dissection of his left vertebral artery, as caused by lifting heavy chains:[1]
2. Worker sustained a left vertebral artery dissection, which arose out of and in the course of his employment duties at or around 08.30 – 09.00 on 29 July.
3. The lifting and dragging of the heavy chains as part of his employment duties was a significant contributing cause of his left vertebral artery dissection, clot formation and consequent ischemic infarcts of his left cerebellum and left cervical spinal cord and sequalae.
- [5]The material contention the Regulator now seeks to plead is an alternate injury, being an aggravation of a pre-existing clot in the left lateral artery which formed as a result of a left arterial dissection.
- [6]The pleading of an alternate injury at this stage of the proceedings is opposed with Patrick Stevedores submitting it is impermissible to allow the Regulator to make the amendment.[2]
- [7]That is the subject of this decision.
The Regulator's submissions
- [8]The Regulator submits that their need to amend their SOFC primarily arises from the following medical evidence given by Dr Richard White, a neurologist who was a witness for Patrick Stevedores:
MR RASHLEIGH: Doctor, would it make a difference to your ultimate conclusion if it were the case that when Mr Anthony had his initial symptoms, he was dragging – to some extent, bending down and dragging a 40-kilogram chain?
DR WHITE: Um, well, I think you've used – you'd have to, um, assume that the act of pulling the chain induced a Valsalva manoeuvre, where you would be straining and, um, closing your glottis and, um, fixing the muscles around the, uh, neck and that would – I guess, uh, quite likely fix the blood vessels between the muscles and then you've got a raised pulse rate and increased blood pressure, so there'd be increased torsional stressors and – and you'd have to say that was a possible, and plausible mechanism to dissect. If he already had a dissection and had a thrombus sitting there, it's also possible that that could have caused the thrombus to embolise at the same time.[3]
- [9]The Regulator further refers to re-examination of their witness Dr Rohan Grimley, Clinical Director of Research at Sunshine Coast Hospital and Health Service:
MR RASHLEIGH: Thank you. He – and also there's a – there's another issue that came up, and Dr Saines was of the opinion that the stroke happened – and you've been asked questions about Dr Saines' reports – that the stroke had happened earlier and that the symptoms suffered in – on the 29th of July 2022 were a breaking away of a piece of the clot that formed as a result of the dissection. Dr White's view was that the pressures applied to the neck when pulling the chains would have been sufficient to loosen that – a piece of the clot and cause symptoms or cause a stroke. What do you say about that? - - - I – I agree with Dr White's opinion, um, that the statistically – and most plausible time – most likely and the most plausible time for the stroke to occur is very soon after the dissection occurred, uh, and the pressures applied, um, with the high intrathoracic pressure induced by pulling of heavy chains is sufficient to be reasonable to cause the – um, a dislodgement of the clot and – and the – uh, and the subsequent stroke. So I think it's both plausible and statistically most likely that that occurred, but I cannot give you a definitive, um, absolute cause for that.[4]
- [10]The Regulator argues that these passages raise the issue as to whether there was an aggravation of a pre-existing thrombosis from an earlier left vertebral dissection, such that their SOFC needs to be amended.
- [11]The Regulator refers to the principles espoused by Martin P in Belal Yousif v Workers' Compensation Regulator (citations omitted): [5]
Statement of Facts and Contentions
[10] The Commissioner relied, in part, on the Statement of Facts and Contentions filed by the appellant. The role of such Statements was the subject of submissions and it will assist if their status is examined before the grounds of appeal are considered.
[11] In appeals brought to the Commission under the Act, it was once the standard practice for a direction to be given requiring the appellant to file and serve a Statement of Stressors. It is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (IR Act). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction.
[12] In Blackwood v Adams, I referred to Statements of Stressors as setting "the boundaries of the application". More recently, in Carlton v Blackwood I said:
"An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment."
[13] A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party's case and, if an admission is made, to rely on that admission.
[14] Section 531 requires that the Commission be:
"… guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
(a) the persons immediately concerned; and
(b) the community as a whole."
[15] It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission's power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.
- [12]The Regulator argues that the evidence comes not from the witnesses of the Regulator as Respondent, but from Dr Richard White, who was called by Patrick Stevedores as the Appellant. That evidence was volunteered rather than led and is now evidence before the Commission to which Dr Grimley, a Respondent witness, agrees. The Regulator submits the amendment ought to be allowed in consideration of the substantial merits of the case.
- [13]For these reasons, the Regulator submits it should be able to amend its SOFC, or if leave is not granted, argue the alternative in their closing submissions.
Patrick Stevedores' submissions
- [14]Patrick Stevedores submits it is impermissible to allow the application supported by:
- The procedural history prior to the hearing;
- The evidence relied upon to justify the proposed amendment;
- The circumstances in which the evidence came to light; and
- The prejudice that would flow to the appellant by the Commission allowing that proposed amendment.[6]
- [15]They note that following the Regulator's initial filing of its SOFC on 25 January 2024, two further uncontested statements of facts and contentions were filed on 21 March and 27 May 2024 respectively. They state the Regulator had ample opportunity to consider the nature of its case and frame its pleadings accordingly.
- [16]Further, that the Regulator had ample opportunity to confer with Dr White and Dr Grimley prior to hearing, including to raise the prospect of Mr Anthony's complicated medical situation being considered from the perspective of an aggravation of an underlying condition.
- [17]Patrick Stevedores further notes the Regulator did not lead any evidence from Dr Grimley in his evidence-in-chief regarding any evidence from Dr White, however proceeded to re-examine him on the contents of that report. This was a matter that Patrick Stevedores notes was objected to at hearing, that I overruled. The relevant passage is as follows:
MR RASHLEIGH: Thank you. Now, can I just ask you this. There's been – there has been some evidence about you saw Dr White's report. Now?
DR GRIMLEY: Correct, yes.
MR RASHLEIGH: So Dr White, when he gave his evidence – and my friend will correct me if I'm wrong – in court, he said that the – a – the symptoms of a dissection –
MR CLARK: I object. I never went anywhere near this in cross-examination.
MR CLARK: All I asked him if he'd seen it when I was –
MR RASHLEIGH: Thank you.
MR CLARK: – trying to glean – okay, that doesn't entitle you to cross-examine him - - -
MR RASHLEIGH: Of course it does.
…
MR RASHLEIGH: - - - I'll pull out this old chestnut: you're not bound by the rules of evidence.
…
COMMISSIONER: So your objection is that - - -
MR CLARK: This was never touched in cross-examination. If my friend wanted to go here, the proper place would have been in evidence-in-chief. In my submission, it should not be opened up in re-examination because it was never touched upon. The mere fact that I happened to mention this – when I was checking to see which documents he had, Dr White's report, doesn't open that as an area of re-examination.
MR RASHLEIGH: In my respectful submission, it does. He's asked the doctor about the dissection and what may occur as a result of the dissection. Now, Dr White, he spoke about Dr White's report. He'd seen Dr White's report. Now, I'm entitled to ask him to comment on what Dr White said in – when giving evidence about his report.
…
COMMISSIONER: Okay, so in relation to when you asked Dr Grimley whether he had access to those reports and had considered those reports.
MR CLARK: I was trying to work out just what documents he had. Initially, I thought he had the tender bundle, and you heard there was a bit of a – I was just trying to ascertain if he had all the reports. Now –
COMMISSIONER: And is Dr White's report in the 38 pages that were provided? Yes. So he did have access to Dr White's report.
MR RASHLEIGH: Yes.
MR CLARK: But I never asked him any questions about the contents of it, Commissioner; that's my point. And more particularly, as the question seems to be focusing on Dr White's evidence.
MR RASHLEIGH: Well, can I just say this. There's been backwards and forwards from my friend about what are in different reports. You'll see Dr Saines, he's asked to give comments on the reports of Dr Grimley, the reports of Dr Forbes, and then the reports on the notes as provided. So it's not as though that hasn't been traversed ad nauseum by my friend in respect of the reports to be tendered at the trial. So in my respectful submission, Dr White's report has been mentioned. He was asked about Dr White's report. Dr White's report is specific, but Dr White, when asked questions, gave a mechanism of injury that –
…
MR RASHLEIGH: … So in my respectful submission, I'm entitled to ask Dr White – Dr Grimley about what Dr White has said.
COMMISSIONER: So I'm inclined to allow it, but you can advise me in submissions what weight you think I should give to that evidence.[7]
- [18]Patrick Stevedores submits that the appropriate course was for the Regulator to lead evidence in relation to Dr Grimley's interpretation of Dr White's report in Dr Grimley's evidence-in-chief. By not doing so, Patrick Stevedores was unable to cross-examine Dr Grimley about that evidence. They highlight that the key consideration under Yousif is procedural fairness to both parties.
- [19]Finally, Patrick Stevedores argues that the Regulator's case should not be allowed to 'evolve' further after all the expert medical evidence has been heard, and where an 'evolved' case is made, it should not escape cross-examination. To allow such would be allowing the Regulator to mount a different and additional case.
What considerations should guide my decision on whether to grant the Regulator leave to amend?
- [20]Both parties broadly endorse the principles espoused in Yousif as applicable to appellant and respondent.[8]
- [21]The Commission has power incidental to the exercise of jurisdiction to allow claims in the proceedings to be amended on terms that are fair and just.[9]
- [22]There are no mandated considerations for the exercise of the discretion. As a general principle, material facts contained within the SOFC must be pleaded with the degree of specificity necessary to define the issues and inform the parties of the case they must meet.[10] The parties' statements set the boundaries of the application.[11]
- [23]A just resolution to the proceedings remains the paramount consideration,[12] and the Commission should not be punitive in exercising its discretion. However, just resolution of disputes should not accede to applications made without adequate explanation or justification.[13] Irrelevant and unnecessary allegations may rightly be struck out as they expand the scope of the matter beyond what needs to be tried.[14]
- [24]Other factors which the Commission may consider include the effect of any delay and costs, the point the proceedings have reached, the nature and importance of the amendments to the applying party, whether the amendments are brought in good faith, and the explanation given by the party seeking the amendments.[15]
Is the Regulator too late?
- [25]It is uncontroversial that this application emerged very late in the proceedings on the morning of 17 October. The alternate basis of injury had first been highlighted on the morning of 16 October. At the commencement of the day, Patrick Stevedores called on the Regulator to clarify their case in their opening, given other amendments to their SOFC. Patrick Stevedores objected when the Regulator indicated that arising from Dr White’s evidence on the afternoon of 15 October the question of an aggravation was enlivened. The relevant passages follow:
MR CLARK: My friend is going to give you an overview of his case.
COMMISSIONER: Yes.
MR CLARK: Can I just say this: I think that’s a good idea. You’ve read the facts and contentions.
COMMISSIONER: I have.
MR CLARK: I think the Respondent has put in about three different facts and contentions. There’s been changes. And in the last one, Dr – I don’t think Dr Pascoe was even mentioned. But there’s been a number of witnesses added to the roll call for the case for the respondent since then. So I’d be grateful if my friend can just clearly indicate what his case is in the course of that opening, particularly in light of these subsequent events.
COMMISSIONER: Okay. Because I note from the file that changes to statements of facts and contentions weren’t objected to in any way throughout the process.
MR CLARK: No. I’ll come - - -
COMMISSIONER: And I understand what you’re requesting is that it just be clarified.
MR CLARK: Look, I appreciate things change as evidence evolves.
COMMISSIONER: Yes.
MR CLARK: But since the last – I think it’s the second further amended, there’s been a lot of developments in respect of the respondents case. Thank you.
COMMISSIONER: Thank you. Mr Rashleigh.
MR RASHLEIGH: Well, that’s primarily because I came into it then.[16]
…
MR RASHLEIGH: …My learned friend is right: he has to prove on the balance of probabilities that Mr Anthony didn’t suffer a personal injury, or that his injury didn’t arise out of or was not in the course of employment, and his employment wasn’t a significant contributing factor.
The – as the case has turned out, it’s - there are two – except for – from the evidence that’s been produced so far by the appellant, there are two bases for the claim. One is that the dissection of the vertebral artery occurred at work while operating the – by pulling those chains – you might remember the evidence, particularly of Dr White, yesterday afternoon – or alternatively, the pulling of the chains caused the clot to dislodge or break off, and that’s what’s caused the turn or the strokes or whatever Your Honour determines they are. All that’s needed under the workers’ compensation legislation to be an injury is there’s some interference with the physiological functioning of the body; so much so has been said by the High Court in Zickar and Kennedy Cleaning. Unless there’s anything else, I call Mr Anthony.
MR CLARK: Can I just make a point. I object to the case now being put in respect of the clot dislodgement. It was not identified by the facts and contentions, and it’s not specifically identified in any of the reports by Dr Grimley or, for that matter, Dr Pascoe.
MR RASHLEIGH: It’s identified in my friend’s case.
MR CLARK: Well - - -
MR RASHLEIGH: Thank you.
MR CLARK: - - - I dispute that as well.
COMMISSIONER: Right. How does that impact on the evidence that’s being led today by the - - -
MR RASHLEIGH: It doesn’t impact at all. This is a hearing de novo. Everything’s up for grabs here. So whilst the facts and contentions may set out a certain set of facts, things change, and it’s changed because of the evidence led by my friend, particularly that of Dr White and Dr Saines about the prospect of the clot having been dislodged by what Mr Anthony was doing on the day.
MR CLARK: That was never identified in the respondent’s facts and contentions.
COMMISSIONER: But it’s true, isn’t it, that in response to questioning in cross-examination, that Dr White, who was the last doctor, indicated that that was possible, I - - -
MR CLARK: Possible. That’s all.
COMMISSIONER: - - - think he said.
MR CLARK: That’s so.
MR RASHLEIGH: Possible and plausible, he said.
MR CLARK: Well – all right.
COMMISSIONER: So in the event that that matter has arisen through cross-examination of your witness, why do you say the fact that that wasn’t included in the statement of facts and contentions - - -
MR CLARK: Well - - -
COMMISSIONER: - - - would preclude that line of argument being pursued?
MR CLARK: - - - we’ll take it to – Dr Grimley specifically disavows it in his evidence - - -
COMMISSIONER: Which you’ll - - -
MR CLARK: - - - and we’ll come to that.
COMMISSIONER: Which we’ll be talking about today.
MR CLARK: Yes. But facts and contentions – this is a hearing de novo, but it’s not, if you like, a free-for-all. They’re there to put each side on notice as to what their respective cases are. And you’ve got this fairly unedifying process whereby – I think it’s - there’s been three goes by the respondent. There was an initial one, an amended, then a further amended, and even the further amended statement of facts and contentions doesn't pick up all the extra evidence that we’re hearing today, as well, and the extra witnesses. Look, I’ll leave it for submissions, but I make the point at this stage.
COMMISSIONER: Thank you.
MR RASHLEIGH: Can I make this point: it was raised by Dr Saines in his reports, in his answers, in his looking at the file. That’s where that came out. So it’s part of my friend’s case, with respect, that the – that what happened on the day was this clot became partially dislodged, and that’s what caused the issue. Now, that was – that's always been their case. Their case is, “Well, did it occur because of the work or did it occur spontaneously,” and that’s what we’re exploring now. And you might remember what Dr Saines said about that as well. But anyway, I can deal with that in submissions. Might I start my case, please?[17]
- [26]It is clear the evidence proffered by Dr White on the afternoon of 15 October during the hearing, was the catalyst for the new basis of injury first proposed by the Regulator on the morning of 16 October. Without drawing any conclusions as to the import of that evidence in the substantive matter it is evidence that is before the Commission. Dr White indicated that the pulling of 40 kg chains could have caused a dissection – that it was a possible and plausible mechanism – and volunteered that it may also have caused a pre-existing clot from an earlier dissection to have come loose leading to the stroke/s. Patrick Stevedores did not seek to clarify any part of the Doctor’s evidence through re-examination. In submissions Patrick Stevedores raises no issues about the permissibility of the evidence provided by Dr White and primarily relied upon by the Regulator for this application.
- [27]In the discussion of this evidence reproduced above, and prior to the Regulator calling any of their medical witnesses, Patrick Stevedores indicates this new basis is not contemplated in the Regulator's SOFC. Patrick Stevedores say they will leave the argument for submissions however note Dr Grimley specifically disavows it in his evidence and that we would come to that later.
- [28]While it is correct the application was not lodged until the third day after all the medical evidence, it is not correct to say that there was no notice as it had been discussed prior to the calling of the Regulator’s medical evidence. I agree the application has come at a late time, but I do not agree it is too late.
What weight should be given to the evidence of Dr Grimley?
- [29]While the Commission is not strictly bound by the rules of evidence, as both Patrick Stevedores and the Regulator have advised me at various stages in the proceeding to date, it does not follow that no regard should be paid to them. Under those rules re-examination of a witness must be confined to matters arising from cross examination, and a new matter may only be introduced with leave of the Commission.
- [30]In considering the objection there was an exchange about whether the reference to Dr White’s report in cross-examination was sufficient to enable re-examination in relation to the evidence he had given about his report. Patrick Stevedores contended they only raised Dr White’s report for the purpose of confirming he had access to it.[18] The Regulator argued it was more than that as it went to the issue of dissection and my assessment was that it went further than just an audit of available documents. Looking at the relevant cross examination of Dr Grimley:
MR CLARK: And, just dealing with the arterial dissection, you read the reports from your colleagues, Dr Noel Saines and Dr White? ... I did yes. Okay and for that matter you’ve also read the report of the occupational physician, Dr Forbes okay? Whilst there doesn’t seem to be any doubt whatsoever that the – that there was an arterial dissection, the relevant issue was when it was likely to occur. Do you understand? ... I understand yes.
MR CLARK: Okay. But nevertheless, whenever it occurred, our legislation speaks of what's called a significant contributing factor? - - -Yes.
MR CLARK: You’d agree with me that the arterial dissection is really the starting point of a pathological – of a physiological process and does represent a – it can be characterised as the significant contributing factor which led to this man’s strokes. Do you agree with that? - - - Ah, yeah, this was a causative factor for his strokes. Ah, what you’re getting at is what – what led to the arterial dissection.[19]
- [31]This exchange goes beyond confirming that Dr Grimley had access to the material for the purpose of giving his evidence. It was within the context of when the arterial dissection was likely to occur. With hindsight, an alternate course may have been allowing the Regulator to re-open their evidence in chief. However, I dealt with the objection as it was and granted leave for the re-examination to continue, advising that Patrick Stevedores could argue in submissions what weight that evidence should be given.
- [32]Patrick Stevedores contends this was an error manifestly prejudicial to them as it denied them the opportunity to cross examine Dr Grimley about any responses to questioning in relation to Dr White's evidence the previous day. Patrick Stevedores argues this original prejudice is then heightened by the Regulator seeking to rely on that evidence to support their amendment.[20]
- [33]I accept compounding prejudice could be a legitimate concern for Patrick Stevedores if I considered the impugned evidence of Dr Grimley was material to the decision I am asked to make in this application. I do not. The bare evidence of Dr White is sufficient to justify a need for the amendment and consequently the exercise of my discretion to grant leave. As outlined above Patrick Stevedores has taken no issue regarding the permissibility of that evidence.
Can any prejudice the amendment may cause be mitigated?
- [34]Where a late application to amend a pleading is opposed on the ground of prejudice, the party seeking to amend has the burden of persuading the court that the amendment should be allowed. They must demonstrate that the amendment would not cause any injustice which would outweigh the consideration that the amendment is necessary.[21] The party opposed to the amendment has the onus of demonstrating the injustice.[22] Error or mistake of the party seeking to amend, if not fraudulent, will not bar the grant of leave if any prejudice the amendment would cause to the other party can be met.[23]
- [35]The main prejudice identified by Patrick Stevedores other than the compounding prejudice dealt with above, is that pleading an aggravation in the alternative requires consideration by medical experts and all the medical evidence has been heard. They argue this leads to 'impermissible and irretrievable prejudice'.[24]
- [36]While it is correct that all the medical experts have given their evidence in the Commission, that does not mean that further evidence cannot be given still. I am encouraged in this view by the statement from Counsel for Patrick Stevedores who at the conclusion of their witness evidence says:
MR CLARK: That’s all the witnesses I propose to call at this stage.
...
MR CLARK: Well there’s always the evidence I can glean from other witnesses tomorrow.
...
MR CLARK: I’m not calling any more witnesses – put it that way.[25]
- [37]The substantive proceedings are not at an end. No directions have issued for final submissions due to the live question regarding leave to amend. The prejudice complained of by Patrick Stevedores assumes that no further evidence could be led or examined – that it is irretrievable. I do not agree.
- [38]There is no impediment to investigation and further evidence being led as a result of the amended pleading. The 'evolved case' would not escape cross examination, including any relevant opinion of Dr Grimley. Patrick Stevedores could adduce further evidence from its own witnesses including Dr White. This is necessary to meet the requirement that I allow parties to amend their claims on terms that are fair and just.
- [39]While Patrick Stevedores has argued in submissions that the Regulator, who has amended their SOFC on two other occasions should know what case it is they are running by now, I accept the submissions from the Regulator that the evidence of Dr White led to this application. While this might be characterised as an error or oversight I do not consider it to have been a fraudulent or deliberate effort by the Regulator to wait until the medical evidence was concluded.
- [40]I also do not consider this late amendment to be about matters that are irrelevant or expand the scope of the matter beyond what needs to be tried. The physiological sequence of dissection complicated by stroke and whether work is a significant contributing factor across that sequence is the fundamental contest in this appeal. Arguing an aggravation in the alternative could not be described as a broad-ranging enquiry.
- [41]I also note the Regulator’s submission that the worker Mr Anthony has a significant interest in this appeal, although not a party. I weigh these interests neutrally but accept having the capacity for an alternate aggravation injury to be argued may be in his interests.
- [42]Weighing all the factors, I find that the Regulator has demonstrated that the amendment should be allowed. Any injustice identified by Patrick Stevedores will be mitigated by their capacity to lead and cross examine relevant medical evidence.
- [43]While no submissions have been made in relation to costs arising from the late amendment, this may be a relevant consideration subject to future submission at the appropriate time.
- [44]The parties are required to confer and agree appropriate draft directions to enable this matter to proceed to a resumed hearing and determination as part of the substantive matter.
- [45]I order accordingly.
Orders
1.Leave is granted for the Regulator to amend their Statement of Facts and Contentions to plead an alternative injury being an aggravation of a pre‑existing clot in the left vertebral artery as a result of a dissection of the left vertebral artery.
2. By 4.00 p.m. Friday 14 March the parties file in the Industrial Registry joint draft directions orders necessary for the resumed hearing and determination of the alternative injury as part of the substantive matter.
Footnotes
[1] Mr Anthony estimated the weight of the chains to be 45 – 50 kilograms in weight, at T 2-82 ll 29-31. Another witness, Mr Trass, estimated 55 – 60 kilograms in weight, or 35 kilograms in dragging weight, at T 3-7 ll 4-8.
[2] Submissions of the Appellant, filed 29 November 2024, [3].
[3] T 1-51 ll 1-11. The transcript quoted has been amended to address an error in the transcript which stated Dr White said "impossible, implausible".
[4] T 2-77 ll 32-45.
[5] Belal Yousif v Workers' Compensation Regulator [2017] ICQ 004, [10]-[15] ('Yousif').
[6] Submissions of the Appellant, filed 29 November 2024, [3].
[7] T 2-74 l 15 - T 2-76 l 33.
[8] [2017] ICQ 004.
[9] Industrial Relations Act 2016 (Qld) s 539(d).
[10] Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia Pty Ltd) (1991) 217 ALR 171, 173 (French J).
[11] Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4, [11]–[15] (Martin P); Gilbert v Metro North Hospital Service [2021] QIRC 255, [475]–[480] (O'Connor VP).
[12] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, 213 ('Aon Risk').
[13] Bond v State of Queensland (No. 2) [2020] QIRC 78, [25].
[14] Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 205, [21].
[15] These factors are set out by Merrell DP in the context of amending an application in Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees v State of Queensland (Queensland Health) (No. 2) [2021] QIRC 278 at [25], referring to Aon Risk (n 12).
[16] T 2-2 11 10-44.
[17] T 2-5 11 15-44.
[18] Submissions of the Appellant, filed 29 November 2024, [15].
[19] T 2-63 11 26-41.
[20] Submissions of the Appellant, filed 29 November 2024, [16].
[21] Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd; The Casper Trader [1992] 3 All ER 132.
[22] May v Thomas [2008] WASCA 215 at [34].
[23] Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379 at 391.
[24] Submissions of the Appellant, filed 29 November 2024, [20].
[25] T 1-52 11 7-20.