Court disallows expert reports not included in Pre-Filing Statement

The recent decision of Skinner v The State of New South Wales [2021] NSWDC 36 is significant in that it provides guidance on section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the onerous requirements for claimants to ensure full disclosure when serving its Pre-Filing Statement.

In this decision, a former officer of the New South Wales Police Force commenced a claim for ‘work injury damages’. The plaintiff suffered psychiatric illness following a nearly 20 year career in the service. Throughout that career, in the performance of her general duties, she was exposed to many traumatic incidents. But the plaintiff also asserted that she had difficulties in the workplace itself, with colleagues and supervisors, and she complained of bullying and harassment. She alleged that the Police Force negligently failed to take steps to protect her from developing her psychiatric illness.

The court ruled that one of the plaintiff’s experts report to be inadmissible due to the requirement of section 318(2) and all but two pages of a further report inadmissible. The court determined that the plaintiff would not be substantially prejudiced by the rejection of the evidence.

The decision confirms the importance of claimants ‘front-end loading’ their claims at the filing of the Pre-Filing Statement. The policy consideration behind section 318 is to encourage settlement at mediation.

Bernard McAuley

McAuley Hawach Lawyers

11 Fennell Street, Parramatta NSW 2124

Telephone: (02) 9633 1826

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