[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: The applicant ABALink Early Intervention Services Pty Ltd (Abalink) seeks leave to appeal from the interlocutory decision of the primary judge, granting leave for the respondent, Mr Albert Billy Danford, to commence proceedings seeking damages against Abalink, his former employer, more than three years after the date on which he claims he was injured.
Abalink is a labour hire company based in Sydney. It employed Mr Danford in 2006. It accepts, in paragraph 8 of its written submissions, that on 6 March 2006 Mr Danford was injured in the course of his employment in Brisbane, while he was sub-contracted to an elevator company, Otis Elevators. The workers compensation claim form lodged at the time states that the accident was reported to "Lead hand - Daryl Gilbert" and "Supervisor - Darren Hutchings". Ms Christina Campbell, who was described as the "owner" of Abalink, made a statement which was before the primary judge containing the following:
"In March 2006 I received a call from Otis to inform me that Albert Danford had suffered an injury and was having some time off work was not fit to attend work and needed to be taken from site. [sic]
We completed forms for Workers Compensation and forwarded them to GIO. I had phone conversations with Albert regarding his welfare and ongoing medical treatment soon after the accident.
Albert reported to us that he was lifting a steel rail and twisted his back and injured his right shoulder when he slipped on some oil that was on the ground near the lift shaft."
It appears that Mr Danford was paid workers' compensation payments until August 2014. There was evidence that his condition was deteriorating during that period. In particular, in April 2009 (slightly more than three years after the accident) Mr Danford made an application for lump sum compensation. The injury was described to have occurred as follows:
"Moving heavy steel lift rail, the Applicant slipped on an oily substance and hit his Right Shoulder on edge of lift wall and twisted his Back and Left Knee."
The application stated that the degree of permanent impairment was in dispute, but sought compensation on the basis of 13% WPI. Ultimately, pursuant to a certificate issued by the Workers Compensation Commission on 19 November 2009, lump sum compensation was ordered on the basis of 8% permanent impairment.
Mr Danford commenced proceedings in February 2018. He says that he slipped and fell on spilt oil while manually lifting a steel rail in an elevator shaft. Previously, he had served a Pre-Filing Statement on 2 May 2017. It is accepted that he needed leave under s 151D of the Workers Compensation Act 1987 (NSW).
Section 151H of that Act provides that no damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. There had been no determination of a Whole Person Impairment (WPI) of at least 15% at any time prior to November 2016, when Mr Danford received a certificate assessing WPI at 17%.
During the hearing before the primary judge, Abalink accepted that it had never conceded that Mr Danford had exceeded the 15% WPI threshold, and did not dispute the inference drawn by the primary judge that there had previously been an expectation that Mr Danford would not get over the 15% threshold imposed by s 151H. Counsel conceded that "this is not my best point", and immediately said that the "real issue" was "the question of prejudice occasioned by the delay".
Mr Danford was cross-examined briefly. The trial judge found that he presented as an honest and straightforward witness. He was cross-examined about his slip on the oil, as follows:
"Q. The accident happened because you slipped on some oil?
A. Yes, sir.
Q. If the oil hadn't been there the accident wouldn't have happened, would that be fair?
A. That's right.
Q. I take it you didn't see the oil before?
A. No, sir.
Q. Because if you had seen the oil you would have made some complaint about it because it would be dangerous on the ground?
A. Yes, sir.
Q. I take it then you don't know how long the oil had been there?
A. I can tell you when because every now and again we've got to come down and pick up parts, when we did come down they were cutting threading pipes, when you thread a pipe you've got to use oil to cool it, if not, you just shatter the threads and they were there.
HER HONOUR
Q. I'm sorry who is 'they', you went down and someone was threading pipes?
A. Yeah, the guys that did the - what you call it - sprinklers.
Q. On the sprinkler system?
A. System. Yes.
MCMANEY
Q. Who was installing the sprinkler system?
A. Some company I don't recall.
Q. The people who were threading the pipes worked for this unknown company, is that correct?
A. Yes.
Q. Do I take it is your hypothesis that the oil has come from these people threading the pipes?
A. Yes.
Q. But that is just your conclusion, you didn't see that directly happen?
A. I did see it, sir. I took them down and get pipes and I see them cutting.
Q. But you have already agreed with me that you hadn't seen the oil before you slipped, so I am suggesting to you that it is your hypothesis or your suggesting that that is where the oil must have come from, you had seen them cutting and you slipped on oil, but you didn't actually see the oil?
A. Yes, when you're moving, that's right.
HER HONOUR
Q. When you reported the accident to who?
A. The supervisor.
Q. He was the person employed by Otis?
A. Yes, that's right.
Q. Did you tell him about the oil?
A. We went up and I showed them where the oil were.
Q. You said 'we' who is we?
A. The supervisor, he's the staff to come up."
Mr Danford went on to say that the supervisor was Mr Darren Hutchings, the lead hand was Mr Darrell Gilbert, and the first aid officer employed by Otis accompanied him to where he had slipped.
The primary judge summarised the evidence before her, in considerably more detail than has been mentioned above. The dispositive parts of her reasons were as follows:
"65 The discretionary considerations concerning applications for extension of time are as follows:
a) The onus is on the applicant to satisfy the court that the limitation period should be extended.
b) The test is whether the justice of the case requires that the application be granted.
c) A material consideration is whether a fair trial is possible by reason of the time that has elapsed since the events giving rise to the cause of action. This is to be judged at the time of the application.
d) Both the length of the delay and the explanation for it are relevant.
e) A defendant is prima facie prejudiced by being deprived of the protection of the limitation period.
f) It is open to the defendant to adduce evidence of any further particular prejudice claimed.
g) The application should be refused if the effect of granting an extension would result in a significant prejudice to the respondent.
h) The application may not be granted if the applicant made a deliberate decision not to commence proceedings within the limitation period.
66 There is no suggestion in the present case that the plaintiff made a deliberate decision not to commence proceedings within the limitation period. The plaintiff promptly made a workers compensation claim and as his condition deteriorated made further claims for lump-sum injuries and pain and suffering. Once his WPI exceeded 15% he acted promptly as did his solicitors.
67 The defendant has been kept up to date with the deterioration of the plaintiff's condition and has had the opportunity to supervise his rehabilitation and obtain medical reports. The repeated claims for lump-sum compensation taken in conjunction the history the plaintiff gave of slipping on oil on the floor would have alerted the defendant and the insurer to the possibility that a claim for work injury damages would be made if and when the plaintiff's WPI exceeded 15%.
68 In the present case there has been a lengthy delay. I find that delay has been adequately explained in the affidavit of the plaintiff's instructing solicitor.
69 The defendant relies on actual and presumptive prejudice. It was conceded that the defendant is still entitled to bring a cross-claim but it was said that it may not be possible for the defendant to ascertain the identity of the entity which installed the sprinkler system and the entity which had overall control of the site. This was not a small domestic work site but a major project in a capital city. There is no actual evidence that documents relating to work at the site are no longer available. The accident was reported on the day that it occurred. The plaintiff in the company of two named individuals inspected the accident site on that day. There is no evidence that either of those individuals is deceased or unable to be contacted. There is little evidence of any attempt to contact them or to identify the name of the crane operator who was working with the plaintiff at the time.
70 The evidence of the plaintiff is that he slipped on oil which was on the floor as a result of the operation of machinery by those installing the sprinkler system. Again this was a large construction site and the work of that contractor was likely to have extended over a number of days. The allegations of negligence are not novel or unusual. Unlike the case of Gower there is no evidence of the defendant having obtained a investigators report that indicated there was no potential for a common law claim (p189).
71 The plaintiff has not obtained an experts report and would now require leave to rely on such a report. This may weaken the plaintiffs case on liability but I am not satisfied that this is sufficient reason, taken together with the prejudice to the defendant, to justify refusing the application. The slippage on the oil may have been an act one off act of casual negligence or it may have been the result of an unsafe system of work or unsafe tools. The onus is on the plaintiff to show that reasonable care would have prevented the spillage.
72 The most material consideration is whether a fair trial can take place. Priestley JA in Holt v Wynter stated at para 79
'... One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.'
73 In the circumstances of this case, I find that despite the presumptive and actual prejudice to the defendant, a fair trial can take place."
The principles governing leave to appeal in this court are well known. Generally, it is necessary to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
Abalink's written submissions in support of the application for leave to appeal were concise. Counsel who appeared at the oral hearing significantly departed from those submissions. Indeed, it would be fairer to say that a substantially new case was propounded orally, one which had not been advanced to the primary judge, was not contained in the written summary of argument, and concededly fell outside the draft notice of appeal. In light of those matters, the Court allowed Mr Morris more than an hour to develop his oral submissions. It is far from clear that that course was appropriate. Certainly, it should not be taken as a precedent for future leave applications. Applicants seeking leave to appeal should ensure that the basis on which leave is sought is articulated in the written submissions, and falls within the draft notice of appeal.
The most efficient course is first to deal with Abalink's proposed grounds of appeal as sought to be advanced in its written submissions, then its novel oral submissions.
[3]
Written submissions in support of Abalink's draft notice of appeal
Abalink proposed five grounds of appeal. Proposed ground 1 was that:
"Her Honour erred in concluding that a delay by the respondent in notifying the applicant of an intention to commence proceedings for work injury damages of approximately 10 years was adequately explained by the fact that the respondent had not been assessed during that period as having a Whole Person Impairment which equalled or exceeded 15%."
As noted above, this was an issue which came close to being disavowed by counsel then appearing for Abalink. The conclusion was amply open to the primary judge. The "real issue" was treated by the parties and the primary judge as being prejudice to Abalink by reason of the delay.
Proposed ground 2 was:
"Her Honour erred in misdirecting herself as to the evidence before her and in respect of the significance of that evidence and, in particular, erred in her conclusion that there was no actual evidence that documents relating to the work undertaken by the respondent at the time of his injury were no longer available."
This is a reference to the statements in [69] reproduced above. The statements are correct. It was open to Abalink to prove those matters, but it chose not to do so. The references to "actual" evidence reflect the fact that in part the hearing was conducted on the basis that it was conceded that subpoenas had been issued without obtaining documents, without formally tendering the subpoenas and the responses. The reference to the absence of "actual" evidence does not bespeak error (still less a reasonably clear injustice). To the contrary, it suggests the primary judge was conscious of the distinction between the evidence tendered and the basis on which the application was run.
Proposed ground 3 was:
"Her Honour erred in failing to appreciate the significance of the prejudice to the applicant by reason of the delay and, in particular, the prejudice associated with the applicant's capacity to determine whether the plaintiff's injury was the result of a casual act of negligence or some failure in a system of work which might have been determined by the applicant prior to the respondent's injury and in relation to which precautions might have been taken so as to prevent that injury."
If the primary judge had entirely ignored the question of prejudice, which was the major issue debated before her, there would be a proper foundation for a grant of leave. But the focus of her Honour's reasons is upon the prejudice, and those reasons concede that there was actual and presumptive prejudice. Ultimately, this ground is merely a way of asserting disagreement with the evaluative conclusion reached by her Honour.
Proposed ground 4 was:
"Her Honour erred in concluding that the actual and presumptive prejudice to the applicant was ameliorated by the fact that the respondent also faced difficulties in presenting his case."
Her Honour made no such conclusion. The ground refers to what was said in [71], as to one aspect of the weakness of Mr Danford's case. But it is a misreading to say that her Honour discounted the prejudice to Abalink by reason of the difficulties faced by Mr Danford.
Proposed ground 5 is that her Honour erred in the exercise of her discretion in failing to refuse the respondent's application for an extension of the period in which to commence proceedings. That takes the matter no further.
There were two respects in which Abalink's written submissions went further than has been summarised above. They may be summarised as follows. First, it was said that the apparent weakness of a claim militated against granting an extension of time. That is so, but it is plainly a matter of which the primary judge was conscious and took into account. If at the end of the day, as Abalink contends, Mr Danford has a weak case, that is something which will be determined on a final hearing, following which there will be a right of appeal.
Secondly, it was said, repeatedly, that the primary judge had erred in finding that there had been multiple claims for lump sum compensation. That appears to be so, but it is a minor error of detail, which was not material to the reasoning.
[4]
Abalink's oral submissions
Mr Morris advanced and gave prominence to five substantially new matters in his oral submissions.
The first was that there was said to be a clear error of fact by the primary judge in summarising the evidence of Mr Danford as to the circumstances of his accident. The complaint focussed on two sentences in [12]:
"He noticed that there were other workers on the site who were threading pipes for the sprinkler system and in the course of this activity oil was spilling onto the ground. Mr Hutchings and Mr Gilbert must also have noticed the oil being spilled if this was happening."
The evidence of Mr Danford on this topic is reproduced above. We are not persuaded that there is any error in what the primary judge summarised above. But equally importantly, it is difficult to see how any error bore materially upon the exercise of discretion some 60 or so paragraphs later.
The second was that, so it was said, while the reasons of the primary judge correctly stated that the onus lay with Mr Danford to justify the grant of leave many years after his injury, her Honour had in effect reversed the onus. This conclusion was said to derive from statements in her reasons that "there is no evidence of enquiries [being] made to ascertain who installed the sprinkler system: and that it was "possible that such documentation is still ... available" at [48], and what was said to have been error in her Honour's statements about there being "no actual evidence" that documents relating to work at the site are no longer available and there "is no evidence" that the two men named on the claim form were deceased or unable to be contacted.
Contrary to what was put on behalf of Abalink, those statements are both correct statements of the evidentiary position on which the application had been brought. (The fact that it was agreed at the Bar table that subpoenas had been issued to some entities and nothing had been produced is in no way inconsistent with what her Honour had said, in the absence of evidence about the terms of those subpoenas and the responses which had been given.) Further, those statements do not imply that her Honour, having correctly stated that the onus lay with Mr Danford, failed to apply that test. True it is that the statement at [71] that her Honour was not satisfied that the absence of expert reports was a "sufficient reason, taken together with the prejudice to the defendant to justify refusing the application" might suggest a reversal of the onus, and might have been better avoided. However, the principle was stated clearly, and we are not persuaded that there is a sufficiently strong case made out that her Honour misapplied it.
The third matter was that there was unfairness to Abalink in Mr Danford allegedly concealing for some years the allegation that he had injured himself by slipping on oil and that this allegation only emerged in a medical report served some years after the accident. When it was pointed out that Abalink had itself proved via the statement, referred to at [2] above, that Mr Danford had told his employer on or about the date of the accident that he had injured himself after slipping on oil, the submission became that there was somehow unfairness occasioned to Abalink's insurer. No unfairness to Abalink or its insurer was demonstrated.
The fourth matter was linked to proposed ground 1. It was there had not been an adequate explanation, in circumstances where a filenote exhibited to the plaintiff's solicitor's affidavit dated 24 August 2009 following receipt of a medical assessment certificate of 8% recorded Mr Danford saying that he believed his condition was deteriorating and that he could "make a deterioration claim and to treat this as one step along the way to try to obtain the 15% WPI for a WID claim". The note continued:
"I therefore confirmed my advice to client that he should accept this current lump sum and then proceed with a DTI claim with a view to a WID claim."
It was not put to Mr Danford in cross-examination that he had held the view that he would make a WID claim years before one was in fact made. Nor was this point made to the primary judge. Indeed, the file note (which was p 154 of a 307 page exhibit) was not mentioned at any stage in the hearing. Nor was it mentioned in Abalink's written submissions in this Court.
In Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205, it was said at [70]:
"There is no good reason to grant leave to determine a ground of appeal which is based upon a submission which was not made to the primary judge. '[W]hen a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious': Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]."
The reasoning is equally applicable to this proposed basis for a grant of leave. Indeed the position is all the stronger. Not only was Abalink's submission not put to the primary judge. When Abalink's counsel agreed with the primary judge ("Absolutely") that there had been no expectation that Mr Danford would get over the 15% WPI threshold, he was presenting a case which was inconsistent with the case now sought to be advanced in support of leave to appeal.
Fifthly and most elaborately, Abalink relied on Part 6 of the Workcover Guidelines for Claiming Compensation Benefits. Section 3 of that Part provides:
"3. Where Whole Person Impairment not Fully Ascertainable
"Court proceedings for WID must be commenced within 3 years after the date on which the injury was received. Reference section 151D of the 1987 Act.
When this time limit is reached but the WPI for the injured worker is not fully ascertainable, the worker should make a claim for WID setting out the particulars of the claim and the evidence to be relief upon as per clause 2 above, with the exception of the degree of assessed WPI."
It was put that the Guidelines had "statutory force", and that they reflected a policy whereby in order to avoid prejudice to the employer's workers compensation insurer, an employee who might in the future make a WID claim should advise of that intention within the 3 year period. It was put that this followed from what had been said in Gower v New South Wales [2018] NSWCA 132.
Against this, Mr Danford - after a mild complaint that this was not a matter which he had fully expected to have to meet - submitted that the Guidelines had no operation here, where it had been established in 2009 that his WPI was only 8%, by certificate binding employee and employer. It was also said that Abalink's construction was impracticable, in that in every case an employee who might in the future wish to make a WID claim should provide notice and otherwise comply with the guidelines before the 3 year period had expired, but in circumstances that at the time he or she did so, it was not lawful to commence proceedings for such a claim. Ultimately, the submission made in this Court was that notice in some form, but not "particulars of the claim and the evidence to be relied upon per clause 2 above" [of the Guidelines] needed to be given by Mr Danford of a proposed WID claim and that the failure by her Honour to refer to the absence of notice bespoke error.
It is not necessary to express a view on any aspect of this submission. The Guidelines had not been placed before the primary judge or addressed, even obliquely, before her Honour. They had not been mentioned in Abalink's written submissions in this Court. The reformulated submission about notice being required but not "particulars of the claim and the evidence to be relied upon per clause 2 above" only emerged in oral reply submissions on the leave application. Abalink conceded, properly, albeit only when asked by the Court, that this point fell outside the draft notice of appeal in respect of which its application had been brought. It accepted that it would be necessary to amend the draft notice. No such draft was proffered to the Court or to Mr Danford.
All of those reasons tell strongly against the grant of leave on a new ground.
[5]
Orders
No basis has been made out for a grant a leave. Accordingly, the summons seeking leave to appeal filed on 16 January 2019 should be dismissed, with costs.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 May 2019