Lancaster v Patrick Stevedores Holdings Pty Ltd [2017] NSWDC 50

District Court New South Wales

Medium Neutral Citation: Lancaster v Patrick Stevedores Holdings Pty Ltd [2017] NSWDC 50 Hearing dates: 1-3, 6 March 2017 Date of orders: 06 March 2017 Decision date: 06 March 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: I grant leave to the plaintiff to adduce the evidence proposed to be adduced from Mr McAleer pursuant to s 318(2) of the 1998 Act. Catchwords: PRACTICE & PROCEDURE – CLAIM FOR WORK INJURY DAMAGES -- Application under Workplace Injury Management and Workers Compensation Act 1998 s 318(2) – Change in working conditions at plaintiff's former workplace after his services were terminated by the defendant – Whether evidence of change reasonably available to plaintiff at time of pre-filing statement – Change occurs between delivery of particulars pursuant to s 282 and service of pre-filing statement Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 Category: Procedural and other rulings Parties: Ronan Lonsdale Lancaster (Plaintiff) Patrick Stevedores Holdings Pty Ltd (Defendant) Representation: Counsel: Mr I Roberts with Mr P Menary (Plaintiff) Mr S Flett (Defendant)

Solicitors: WG McNally Jones Staff Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant) File Number(s): 2016/56960

Judgment 1. HIS HONOUR: This is an application under s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998.

Background 1. The plaintiff was employed by the defendant in the middle of 2003. He was initially employed as a casual employee and did work at both the Glebe Island container terminal and in Darling Harbour for the defendant. However, the plaintiff, at the time that he was engaged by the defendant, was told that he was to be trained as a straddle crane operator working at a container terminal or container terminals. In January 2004, he underwent training for two weeks in order to become a straddle crane operator. At about the same time, he became a permanent guaranteed employee of the defendant. That meant that he was guaranteed an annual salary of at least $35,000 and that he was entitled to holiday pay, sick pay, long service leave, and superannuation benefits. 2. In 2012 the plaintiff was assigned to be a member of the permanent irregular roster. That was a superior position to being an ordinary PGE employee. When the plaintiff joined the permanent irregular roster he was guaranteed a minimum annual salary of $103,000 plus the other entitlements to which a permanent employee is entitled. One of the benefits of being on the permanent irregular roster was that it placed one on a list to join the permanent regular roster where there were even greater benefits. 3. On 18 July 2012 an announcement was made by the defendant to its employees at Port Botany. The nub of the announcement was that the defendant intended to automate its straddle cranes. Straddle cranes at Port Brisbane had been automated in 2005. The plaintiff went on to give this evidence: "They told us they were going to automate, and then they told us that they would release a plan on what they were going to do with the labour force. I don't remember the exact date that we got a plan with what was going to happen with the labour force, but they said there would be new roles created by the automation. There would also be redundancies offered, and there would also be the option to apply to work interstate if they didn't have roles for you in Sydney if you didn't want a redundancy …" Antecedent to that announcement the plaintiff had heard "on the grapevine" that the automation of straddle cranes was going to occur. At that time, the plaintiff also said that he was not happy being on the irregular roster and he was considering going off to join the mining industry where it is common knowledge that wage rates were much superior to those offered to stevedores. 1. The plaintiff did a preliminary course in Wollongong, a mine safety course for coalmining, and in the middle of 2012 commenced studies at the University of New South Wales which at the end of 2012 caused him to be awarded a Graduate Certificate in Mining Engineering and, on 31 July 2013, caused him to be awarded the degree of Master of Mining Engineering specialising in Mine Management. 2. However, in the meantime, the plaintiff, who had been complaining about back problems since 2004, had an increase in his low back pain in an event which has been described as occurring on 25 January 2013 and is confirmed by the defendant's first aid records. Thereafter there was an acceleration of the plaintiff's complaints about his low back causing him to consult a general practitioner on 8 March 2013. The plaintiff had to stop working on 5 May 2013 because by that stage he had constant low back pain. He was seen shortly thereafter by Dr Timothy Steel, a neurosurgeon, and on 22 November 2013 underwent an excision of the lumbosacral disc and a replacement of that disc with a prosthesis. Such surgery needed to be undertaken by way of the anterior approach. 3. After the surgery to his back the plaintiff asked for suitable employment. On 14 February 2014 the plaintiff sent to his employer a certificate of Dr Steel which certified he was fit for alternative work commencing on 24 February 2014. Exhibit H, a trail of emails, refers to that application. However, the application was refused. The plaintiff's services were terminated by the defendant on 16 March 2014. 4. Antecedent to the flare-up of his back pain on 25 January 2013 the plaintiff had formed the intention of leaving the stevedoring industry and entering the mining industry. His plan was to accept a redundancy payment from the defendant when the automation of the straddle cranes occurred. The plaintiff said that he lodged in 2012 an expression of interest in taking a redundancy when the redundancies were to be offered. However, when the plaintiff stopped working because of his back complaint, he told me that he withdrew that expression of interest but when his services were dispensed with by the defendant after the defendant failed to provide him with suitable employment, he was again interested in taking a redundancy package and that was offered to him and accepted.